Petitioner appeals from an order of the Michigan Tax Tribunal granting respondent’s motion for summary disposition and denying petitioner’s motion for summary disposition. We reverse and remand.
In July 1989, police officers searched petitioner’s house pursuant to a search warrant. The officers seized four ounces of marijuana, as well as financial records detailing sales and purchases of marijuana. Following the search, petitioner was charged with possession of marijuana with intent to deliver. Petitioner successfully challenged the validity of the search warrant in the Detroit Recorder’s Court, which ordered the seized evidence suppressed. The criminal charges against petitioner were subsequently dismissed.
The financial records seized from petitioner’s house were turned over to respondent. Respondent and its agents had not participated in the preparation or execution of the search warrant. Respondent used the information contained in the financial records to determine that petitioner owed unpaid sales, use, income, and single business taxes, along with penalties and interest. Shortly before the criminal charges against petitioner were dismissed, respondent issued a jeopardy tax assessment against her, pursuant to MCL 205.26; MSA 7.657(26), in the amount of $26,079.
Petitioner challenged the tax assessment in the *547 Tax Tribunal, contending that evidence seized during an illegal search cannot be used as the basis for a jeopardy tax assessment. Both parties moved for summary disposition pursuant to MCR 2.116(C) (10), and petitioner also moved for summary disposition pursuant to MCR 2.116(C)(6) and (8). The hearing officer found that the evidence could be considered and used as the basis for the tax assessment. The Tax Tribunal adopted the hearing officer’s proposed order, granted summary disposition to respondent, and denied petitioner’s motion for summary disposition.
Petitioner contends that the Tax Tribunal erred in granting respondent summary disposition and declining to grant her summary disposition. Petitioner argues that under Michigan law, as set forth in
People v Pringle,
Our review of decisions of the Tax Tribunal is limited to determining whether the factual findings of the tribunal are supported by competent evidence, and, where fraud is not alleged, whether the tribunal has made an error of law or adopted a wrong principle.
Meadowlanes Ltd Dividend Housing Ass’n v Holland,
Pringle is factually similar to the case at bar. In Pringle, police officers arrested the defendants for delivery of marijuana and seized books and records detailing narcotics transactions. The officers turned the records over to the Michigan Department of Treasury, which in turn used the evidence as the factual basis for a jeopardy tax assessment against the defendants, seizing money that had been discovered during the defendants’ arrests. The defendants successfully moved for suppression of the evidence and the circuit court subsequently granted their motion for return of the money. Id., 28. This Court affirmed, determining that evidence obtained pursuant to an unconstitutional search and seizure cannot serve as the factual basis or the triggering event for a jeopardy tax assessment and the seizure of money. Id., 33.
The federal exclusionary rule has been applied differently, however. In
United States v Janis,
In Tirado, the Second Circuit Court of Appeals extended the rule of Janis to intrasovereign situations and held that the evidence seized by federal agents during a search that was later found to be unconstitutional could still be used by the irs to determine the suspect’s tax liability for narcotics-related income. The court determined that the key inquiry was whether the original unconstitutional search was somehow motivated by the challenged use of the evidence. Tirado, supra, 310-311. The court discussed that the exclusionary rule applied only to those circumstances where the deterrent effect would be "substantial and efficient.” Id., 310. The court explained that the need for the evidence should be balanced against the deterrent effect, and that to make this determination, the court must examine the motives of the searching officers. The closer the evidence is to the officers’ "zone of primary interest” in seizing the evidence, the stronger the inference that the officers had that use in mind when they seized the evidence. *550 Id., 310-311. The court further reasoned that the exclusionary rule would apply if there were a close relationship between the search and the secondary proceeding. Any indication of an explicit understanding between the two law enforcement bodies would be decisive to invoke the exclusionary rule. Id., 312. Thus, Tirado does not rule out the application of the federal exclusionary rule in all civil cases, but instead calls for an analysis of the facts of each case.
The Michigan Constitution is construed to provide no greater protection against unreasonable searches and seizures than does the Fourth Amendment, absent a compelling reason to apply a different interpretation. Const 1963, art 1, § 11;
People v Collins,
Michigan courts have applied Michigan’s exclusionary rule in civil proceedings under certain circumstances.
Id.;
see, e.g.,
Lebel v Swincicki,
The United States Supreme Court in Janis cited valid concerns for its reluctance to apply the federal exclusionary rule to civil proceedings, such as the hampering of the enforcement of valid laws. We note, however, that this is also true of the application of the exclusionary rule to criminal proceedings, where federal and Michigan courts agree that the interest of law enforcement must be balanced against the interest of safeguarding Fourth Amendment rights. Similarly, the Tirado approach would only exclude unlawfully seized evidence where there was proof of collusion between the agency executing the unlawful search and the agency pursuing the civil proceedings. In addition to the enormity of the burden placed upon a defendant to prove actual collusion among law enforcement personnel, we believe that this approach is insufficient as a deterrent. In criminal proceedings, the interests of deterrence have been *552 thought so great as to require essentially a blanket exclusion of all unlawfully seized evidence. We see no reason to conclude that the need for deterrence of unlawful police conduct is less simply because the evidence is to be used in a civil proceeding.
While we do not imply collusion or any wrongdoing by law enforcement officers or the prosecution in this case, we cannot ignore the possibility that criminal proceedings may in some cases serve merely as a pretext for the true goal of seizing evidence for a civil proceeding. An even more likely situation would be the use of the unlawfully seized evidence in a civil proceeding in order to reach a defendant against whom criminal proceedings have been thwarted because of an illegal search and seizure. We therefore conclude that the Tax Tribunal erred in finding that Pringle was essentially overruled by Tirado. Following the established precedent in this state, the Tax Tribunal is not permitted to base its jeopardy tax assessment upon unlawfully seized evidence, nor may the unlawful search and seizure serve as the triggering event for the tax assessment.
Respondent also contends that it is entitled to summary disposition because petitioner failed to adequately respond to respondent’s motion for summary disposition in the Tax Tribunal pursuant to MCR 2.116(0(10). Respondent’s motion was supported by affidavit, as required by MCR 2.116(G)(3) (b). Respondent argues, and the Tax Tribunal held, that pursuant to MCR 2.116(G)(4), petitioner was required to respond with supporting affidavit or other supporting documents to refute respondent’s contention that there was no genuine issue of material fact, but failed to do so.
A motion for summary disposition pursuant to MCR 2.116(0(10) tests the factual support for a claim.
Admiral Ins Co v Columbia Casualty Ins Co,
*553
In this case, we note that petitioner did file an affidavit with her amended response to respondent’s motion for summary disposition, but did not refute respondent’s contention that there was no genuine issue of material fact. This is understandable, because petitioner agreed that there was no genuine issue of material fact, as evidenced by petitioner’s own motion for summary disposition pursuant to MCR 2.116(0(10). Given these circumstances, respondent was not entitled to summary disposition simply because petitioner failed to dispute that there was no genuine issue of material fact.
Reversed and remanded. We do not retain jurisdiction.
Notes
We distinguish the discussion in
People v Chapman,
We note that
Manko v Root,