PEOPLE v SOBCZAK-OBETTS
Docket No. 115890
Supreme Court of Michigan
May 1, 2001
463 Mich 687 | 625 N.W.2d 764
Argued November 14, 2000 (Calendar No. 9).
In an opinion by Justice YOUNG, joined by Chief Justice CORRIGAN, and Justices TAYLOR and MARKMAN, the Supreme Court held:
The evidence should not have been suppressed and the case should not have been dismissed for a violation of the procedural requirements of
- The suppression of the evidence seized in this case is not an appropriate remedy for the statutory violation at issue. Nothing in the language of the statute provides any basis to infer that it was the Legislature‘s intent that the drastic remedy of exclusion be applied to a violation of the statute. The requirements of the statute are ministerial in nature and do not in any way lead to the acquisition of evidence; rather, they come into play only after evidence has been seized pursuant to a valid search warrant.
- The exclusionary rule pertains to evidence that has been seized illegally. In this case, there was no police misconduct. There was no causal relationship between the officers’ failure to provide the defendant with a copy of the search warrant affidavit and the seizure of the firearms. The deterrent purpose of the exclusionary rule would not be served by applying it under these circumstances. Further, the defendant‘s constitutional rights were in no way infringed.
Justice WEAVER, concurring, stated that state warrant requirements should not apply to a federal search warrant executed dur
Reversed and remanded.
Justice CAVANAGH, joined by Justice KELLY, dissenting, stated that evidence gathered under a warrant that did not recite the basis for its issuance, as required by statute, should be excluded.
In this case, even though the warrant may have had an affidavit attached to it at some prior time, when it was delivered to the defendant, it did not. In fact, the defendant was not informed of the affidavit‘s contents until some four months after the search. Thus, the defendant did not have notice of the reasons for the search; she could not promptly know the accusation against her or upon what it was based. Regardless of whether the warrant ever had an affidavit reciting its basis, it did not state its basis when it was delivered to the defendant, and the defendant should not have evidence gathered under it admitted against her.
While the statute clearly indicates the Legislature‘s policy of requiring officers to leave a copy of the warrant, which must recite the basis for its issuance, with the searched party, under the majority‘s decision, there is no consequence for a failure to do so or to tabulate the property seized, leave a copy of the tabulation with the searched party or at the searched premises, file the tabulation, and keep the property seized safe, as required by the statute. Rather than leave the Legislature‘s policies doubtful, to ensure that the policy is observed, the challenged evidence should be excluded.
Jennifer M. Granholm, Attorney General, Thomas L. Casey, Solicitor General, William A. Forsyth, Prosecuting Attorney, Timothy K. McMorrow, Chief Appellate Attorney, and Vicki L. Seidl, Assistant Prosecuting Attorney, for the people.
Jeffrey P. Kirchhoff for the defendant-appellee.
Amicus Curiae:
Jeffrey L. Sauter, President, John D. O‘Hair, Wayne County Prosecuting Attorney, and Timothy A.
YOUNG, J. We granted leave in this case to consider whether firearms found in defendant‘s home, upon execution by federal and state police officers of a federal search warrant, were properly excluded from evidence in a state prosecution. The firearms were suppressed on the ground that a copy of the affidavit in support of the search warrant was not provided, as required by statute, to defendant at the time the warrant was executed. Because we are unable to conclude that the Legislature intended the exclusionary rule to apply to the procedural violation of Michigan‘s statutory warrant requirements at issue in this case, we reverse.
I. FACTUAL AND PROCEDURAL BACKGROUND
Defendant and her husband, Timothy Obetts, were co-owners of Pro Temp One Incorporated,1 a Michigan corporation that provided skilled and semiskilled health care workers to hospitals, nursing homes, and private homes. In May 1997, the Michigan Accident Fund, Pro Temp One‘s worker‘s compensation carrier, received a call on its fraud hotline indicating that defendant, Obetts, and Pro Temp One had misrepresented worker‘s compensation employee classifications to the fund. After gathering information from associates and former employees of Pro Temp One, a fraud investigator from the fund contacted Michigan State Police Sergeant Jack Vanderwal, who initiated a
Special Agent David Smith of the FBI interviewed two former employees of Pro Temp One and a personal friend of defendant.2 On the basis of the information provided by these three sources, Smith sought a federal search warrant to search the private residence of defendant and Obetts. Smith‘s affidavit in support of the search warrant referred to the three sources as “Source One,” “Source Two,” and “Source Three.” On October 30, 1997, a federal magistrate issued the requested search warrant.3 The magistrate ordered that the affidavit in support of the warrant be sealed, apparently to protect the sources.
On October 31, 1997, the federal search warrant was executed at the residence of defendant and Obetts by one or more FBI agents and one or more Michigan State Police officers. While searching the basement of the home, two of the FBI agents came upon a locked safe. The agents asked defendant about the contents of the safe, and she replied that it contained weapons. Defendant then unlocked the safe, and the agents seized two handguns from it. In accordance with federal procedure, when the search was completed, defendant was given a copy of the
At defendant‘s preliminary examination, defense counsel requested a copy of the affidavit in support of the search warrant. The assistant prosecutor indicated that the federal magistrate would be petitioned to unseal the affidavit for purposes of the state proceedings. The district court judge presiding over the preliminary examination stated that he would bind defendant over for trial after defendant received a copy of the affidavit. Within two weeks following the preliminary examination, the affidavit was unsealed and provided to defendant, and she was bound over for trial.
Defendant moved to exclude the firearms from evidence on various grounds, including that the police did not comply with Michigan statutory requirements regarding warrant execution. Following two hearings on the motion to suppress, the trial court held that the motion had to be granted on the ground that defendant was not provided with a copy of the affidavit in support of the search warrant at the time of the search in contravention of
A divided panel of the Court of Appeals affirmed. 238 Mich App 495, 496-504; 606 NW2d 658 (1999). In the lead opinion, Judge HOEKSTRA noted first that, pursuant to People v Paladino, 204 Mich App 505, 507-508; 516 NW2d 113 (1994), in a joint operation between the state and federal governments, state law governs the validity of a search warrant in state court proceedings. Judge HOEKSTRA next opined that, although two panels of the Court of Appeals had recently held that a failure by law enforcement officers to comply with the statutory requirement to attach a copy of the affidavit to the copy of the warrant provided to the defendant does not require suppression of evidence seized pursuant to the warrant,5 those decisions conflicted with this Court‘s holding in People v Moten, 233 Mich 169; 206 NW 506 (1925).6 Judge HOEKSTRA concluded that, because Moten had not been overturned, the Court of Appeals was constrained to hold that, where a warrant relies on an attached affidavit for its statement of probable cause and that affidavit is not attached to the warrant as statutorily required, the evidence seized pursuant to
While this particular statutory provision generally relates to a constitutional right, the specific portion of the statute requiring a recitation of the basis for probable cause or the attachment of the affidavit only barely relates to the substantive right the Legislature is seeking to protect. The requirement is more of a ministerial duty than a right. Consequently, were I able, I would hold that defendant must show some prejudice before the trial court suppresses the evidence seized using a statutorily defective warrant. In this case, for example, defendant was eventually afforded a chance to contest the basis for the warrant. I am unable to see how defendant was put at a disadvantage by being forced to delay her arguments until the parties obtained a copy of the federal affidavit. I think it is especially important that defendant be forced to show some level of prejudice given that the warrant met all the requirements of the federal warrant statute. Here, I find it necessary to exclude the evidence in question because the state warrant requirements differ from federal warrant requirements. Neither party has argued that the federal warrant requirements are unconstitutional, so it seems that I am forced to declare a search invalid because the ministerial duties associated with executing a federal warrant differ from those associated with executing a state warrant, a result I hope our Supreme Court will find equally unsettling. [238 Mich App 503-504.]
Judge CAVANAGH concurred only in the result. 238 Mich App 504.
Judge GAGE dissented, opining that the Court of Appeals decisions in People v Garvin, 235 Mich App 90; 597 NW2d 194 (1999), and People v Pipok (After Remand), 191 Mich App 669; 479 NW2d 359 (1991), controlled this case, and that this case was distinguishable from Moten. While the statute in effect at the time Moten was decided required that
We granted the prosecution‘s application for leave to appeal,7 and we now reverse.
II. STANDARD OF REVIEW
This Court reviews a trial court‘s ruling regarding a motion to suppress for clear error. People v Stevens (After Remand), 460 Mich 626, 631; 597 NW2d 53 (1999); People v Burrell, 417 Mich 439, 448; 339 NW2d 403 (1983). However, questions of law relevant to the suppression issue are reviewed de novo. Stevens, supra at 631; see also People v Sierb, 456 Mich 519, 522; 581 NW2d 219 (1998).
Where violation of a state statute is involved, “‘[w]hether suppression is appropriate is a question of statutory interpretation and thus one of legislative intent.‘” Stevens, supra at 644, quoting People v Wood, 450 Mich 399, 408; 538 NW2d 351 (1995) (BOYLE, J., concurring). “Because our judicial role precludes imposing different policy choices than those selected by the Legislature, our obligation is, by examining the statutory language, to discern the legis
III. ANALYSIS
A. STATUTORY WARRANT REQUIREMENTS
In support of her motion to suppress the weapons, defendant contended that
A search warrant shall be directed to the sheriff or any peace officer, commanding such officer to search the house, building or other location or place, where any property or other thing for which he is required to search is believed to be concealed. Each warrant shall designate and describe the house or building or other location or place to be searched and the property or thing to be seized. The warrant shall also state the grounds or the probable or reasonable cause for its issuance, or in lieu thereof, a copy of the affidavit may be attached thereto. [Emphasis supplied.]
When an officer in the execution of a search warrant finds any property or seizes any of the other things for which a search warrant is allowed by this act, the officer, in the presence of the person from whose possession or premises the property or thing was taken, if present, or in the presence of at least 1 other person, shall make a complete and accurate tabulation of the property and things so seized. The officer taking property or other things under the warrant shall forthwith give to the person from whom or from whose premises the property was taken a copy of the warrant and shall give to the person a copy of the tabulation upon completion, or shall leave a copy of the warrant and tabulation at the place from which the property or thing was taken. [Emphasis supplied.]8
B. APPLICATION OF THE EXCLUSIONARY RULE
1. INTRODUCTION
The prosecution argues that, where the only defect in the search and seizure was a technical violation of
2. PEOPLE v MOTEN
In a trilogy of prohibition-era cases, this Court suppressed evidence obtained pursuant to search warrants that were violative of the search warrant requirements set forth in § 27 of Michigan‘s “liquor law,” 1922 CL 7079(27), which provided in relevant part as follows:
No warrant for search shall be issued until there has been filed with the magistrate an affidavit describing the house or place to be searched, the things to be searched for, and alleging substantially the offense in relation
thereto, and that affiant believes, and has good cause to believe that such liquor is there concealed: Provided, however, That any description that will enable the officer to find the house or place to be searched shall be deemed sufficient. The warrant for search shall be directed to the proper officer and shall recite all of the material facts alleged in the affidavit, and describe the things to be searched for and the place to be searched. A warrant for search and seizure substantially in the following form shall be sufficient:
“... Whereas there has been filed with the undersigned an affidavit (here set out the material facts alleged in the affidavit) ....” [Emphasis supplied.]
In Moten, this Court held that § 27 of the liquor law had been violated where the search warrant did not contain a recitation of the facts alleged in the affidavit. As a result of this statutory violation, the Moten Court held,
[t]he warrant is invalid, and the evidence procured thereunder inadmissible. “With such evidence out, defendant should have been discharged.” People v Knopka, 220 Mich 540 [190 NW 731 (1922)].10
In People v Bules, 234 Mich 335; 207 NW 818 (1926), the search warrant suffered from the same deficiency as that in Moten: It failed to recite the facts set forth in the supporting affidavit as required by § 27 of the liquor law. Because the statute had been violated, this Court held, “[the] warrant was void on its face” and the evidence had to be suppressed:
The mandate of the statute is clear, that the material facts alleged in the affidavit for the warrant shall be recited in the warrant, and the legislature even took the pains to set out a form, in which it directed the user to (“Here set out the material facts alleged in the affidavit“). ... The law cannot be made plainer, and is but expressive of long time precedent established to prevent abuse. We deplore the carelessness evidenced here and so inexcusable if the statute was read, but we are bound to correct here such a palpable blunder. The evidence seized on the so-called search warrant should have been suppressed. [Bules, supra at 336.]
Likewise, in People v Galnt, 235 Mich 646; 209 NW 915 (1926), the search warrant failed to recite the material facts alleged in the affidavit, contrary to § 27 of the liquor law. Accordingly, this Court held, the warrant was “void,” and “the search [was] unlawful, a violation of [the defendant‘s] constitutional right [Const 1908, art 2, § 10] that his house shall be secure from unreasonable searches and seizures.” Id. at 648 (emphasis supplied). Thus, what had been characterized in Moten and Bules as a purely statutory imperfection was in Galnt characterized as being of constitutional magnitude.
In recent years, the Court of Appeals has addressed the Moten-Bules-Galnt trilogy in the context of Michigan‘s modern search warrant statutes.11 In Pipok, supra, a federal search warrant was executed by state and federal officers. The search warrant was issued pursuant to federal law, and it did not comply with Michigan‘s requirement set forth in
The Moten Court ... found the recital [of material facts alleged in the affidavit] to be an “essential requirement” of a valid warrant and held that evidence seized pursuant to a warrant lacking such a recital must be suppressed.
Since the court‘s decision in Moten, statutory law in this state has changed to permit a supporting affidavit to be attached to the warrant in place of stating the material facts, or grounds for issuance, on the warrant itself. Again, the provision is designed to guarantee that a record of probable cause is established. The Legislature has apparently recognized that the affidavit alone is sufficient to establish a record of probable cause and that it is not necessary to transcribe the material facts from the affidavit onto the warrant. [Pipok at 672-673.]
The Pipok panel noted that the federal magistrate‘s determination of probable cause was based on an affidavit, that the defendants did not articulate any prejudice resulting from the noncompliance with § 4, and that the defendants were eventually provided with copies of the affidavit and given the opportunity to challenge the probable cause determination. The panel thus concluded that “the failure of the warrant to state the grounds for issuance or to have the supporting affidavit attached did not abrogate the pur-
In Garvin, supra, the Court of Appeals again addressed a defendant‘s contention that Moten required suppression of evidence, this time for a violation of
The Court of Appeals reversed, holding that the officers’ failure to provide Garvin with a copy of the affidavit did not require suppression of evidence seized pursuant to the warrant. The panel noted that in Pipok, supra, the Court had refused to suppress evidence on the basis that § 4 had been violated, where there were no allegations that the search warrant was constitutionally defective or that the defendants had suffered any prejudice. Likewise, the Garvin panel concluded, suppression was not required as a remedy for a violation of § 5:
[I]t follows [from Pipok] that the failure of the police to provide or leave a copy of the affidavit as part of the copy of the warrant does not provide a basis for suppression of evidence, because Garvin ultimately has the opportunity to
challenge probable cause supporting the warrant and because the requirement is merely procedural.
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We strongly agree with the pertinent holding by the Pipok Court. It is one thing, under certain circumstances, to order the drastic remedy of suppressing highly relevant evidence to enforce the fundamental constitutional guarantees against unreasonable searches and seizures of
US Const, Am IV andConst 1963, art 1, § 11 . It is quite another to extend the exclusionary rule to a technical deficiency, such as failing to provide or leave a copy of an affidavit in connection with the exercise of a reasonable search in which the law enforcement officers executing the search provide a copy of the search warrant itself, thereby providing notice that the search has been judicially authorized. [Id. at 99-101.]
More recently, a panel of the Court of Appeals has retreated from the holding of Garvin that suppression is not required for a violation of § 5. In People v Chapin, 244 Mich App 196; 624 NW2d 769 (2000), a search warrant was executed at the defendant‘s home. Upon completion of the search, a copy of the search warrant was left at the home. A copy of the affidavit was available; however, it was not left at the home, because the prosecutor had specifically requested that the officers not leave a copy of the affidavit. The defendant moved for suppression of marijuana and other incriminating evidence seized, arguing that § 5 had been violated and that suppression was required pursuant to Moten.
The Chapin majority, after determining that the statutory requirements of § 4 were “incorporated”
[u]nder both versions of the statute, the requirement exists that the warrant, whether in the body of the warrant itself or by affidavit attached thereto, must state the grounds or the probable cause for its issuance.
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Thus, despite recodification of the statute, [the holding in Garvin that, where a supporting affidavit is used in lieu of a statement of probable cause in the warrant pursuant to § 4, a copy of the affidavit becomes part of the “copy of the warrant” that must be provided to the defendant pursuant to § 5] is consistent with the Supreme Court‘s pronouncement in Moten, Bules, and Galnt that the material facts in support of the issuance of a search warrant must be included with the search warrant. [Id. at 201-203.]
Moving on to the question of the proper remedy for a violation of § 5, the Chapin majority declined to follow the holdings of Garvin and Pipok that suppression was not required:
[I]n Garvin the Court held that the failure of law enforcement officers to comply with the statutory requirement to
attach a copy of the affidavit to the copy of the warrant provided or left does not require suppression of the evidence seized pursuant to the warrant because the requirement is merely procedural. See also [Pipok, supra]. However, Garvin‘s holding is inconsistent with the Supreme Court‘s pronouncement in Moten, Galnt, and Bules that violation of the statutory requirement that the search warrant state the grounds or probable cause for issuance of the search warrant renders the warrant invalid and requires suppression of the evidence. Because Moten, Galnt, and Bules remain good law, we must follow their precedent. Thus, because officials left the warrant at defendant‘s home without the supporting affidavit, and the warrant itself did not state the probable cause grounds, the circuit court properly suppressed the evidence. See [238 Mich App 498]. [Chapin, supra at 203-204.]
Judge HOOD dissented, opining that Moten was distinguishable because it addressed a statutory violation different from the violation at issue in Chapin:
Review of the statutes at issue reveals that Moten, supra, does not govern this case. The issue in Moten involved the statutory requirements that must be contained within a search warrant, now codified at
MCL 780.654 ;MSA 28.1259(4) . The defendant in Moten never took issue with the delivery of the search warrant that was left at the home, but rather, took issue with the contents of the search warrant itself.*
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In the present case,
MCL 780.654 ;MSA 28.1259(4) provides that the search warrant must contain the basis of probable cause within the document or in lieu thereof, a copy of the affidavit may be attached thereto. Defendant does not dispute that at one time, the two documents, the search warrant and the supporting affidavit, were both available. ... [Rather,] [d]efendant‘s challenge ... involvesMCL 780.655 ;MSA 28.1259(5) . . . .
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Once it is accepted that Moten is not controlling, some perceived conflict with prior decisions of this Court either does not exist or is distinguishable. First, it should be noted that [238 Mich App 495] is without precedential value because a majority of the judges concurred in the result only and did not concur in the rationale underlying the decision. . . . Additionally, the decision of [Pipok, supra] is not controlling because it involved the statutory interpretation of
MCL 780.654 ;MSA 28.1259(4) , not the statute at issue here. Instead, this case is factually in accordance with the decision of [Garvin, supra]. Both cases address the issue of an alleged technical failure to comply withMCL 780.655 ; [MSA 28.1259(5) ], and the Garvin Court concluded that that failure did not require suppression of the evidence. The Garvin decision was criticized and deemed wrongly decided for its failure to address the Moten decision. [238 Mich App 502-503]. However, as indicated, when the actual language of the statute addressed in Moten is traced, one concludes that the statute was recodified atMCL 780.654 ;MSA 28.1259(4) . The issue before this panel and the Garvin Court [involves]MCL 780.655 ;MSA 28.1259(5) , a statute not addressed by [the] Moten Court. Accordingly, the precedent of Moten would not be disregarded in reaching this holding. [Id. at 206-210.]
4. APPLICATION OF MOTEN TO A VIOLATION OF § 5
We agree with much of Judge HOOD‘s dissenting analysis in Chapin with respect to the precedential value of Moten and its progeny in the context of a violation of
The statutory violation at issue in Moten, Bules, and Galnt is not comparable to the statutory violation at issue in the case at bar. It is possible to analogize 1922 CL 7079(27)—the liquor law search warrant provision at issue in Moten—to § 4 of the current statutory warrant scheme, because both those statutes pertain to the warrant form. Where the form of the warrant is deficient, the resulting search may be constitutionally defective.16 In contrast, § 5 of Michigan‘s present statutory warrant scheme sets forth procedural requirements that are to be followed by the police during and after the execution of an otherwise
We leave for another day the question of the proper remedy for a violation of the requirement of § 4 that the warrant either recite the probable cause grounds or, in lieu of such a recitation, incorporate the affidavit by attachment. Because Moten did not address a violation of a statutory prescription regarding procedural measures to be taken by the police in their execution of an otherwise valid search warrant, we find it to be inapposite to this case.
5. LEGISLATIVE INTENT
Having determined that Moten provides no guidance with respect to the issue before us—whether a technical violation of
We have recently had occasion to consider whether evidence obtained during the execution of a search warrant must be excluded where the executing officers violated our “knock and announce” statute,
In holding that suppression was not an appropriate remedy for the violation of “knock and announce” principles in Stevens, we noted that the exclusionary rule “is not meant to put the prosecution in a worse position than if the police officers’ improper conduct had not occurred, but, rather, it is to prevent the prosecutor from being in a better position because of that conduct.” Id. at 640-641, citing Nix v Williams, 467 US 431, 443; 104 S Ct 2501; 81 L Ed 2d 377 (1984). We additionally found persuasive the fact that the “knock and announce” requirement “does not control the execution of a valid search warrant; rather, it only delays entry.” Stevens, supra at 645. Where it was the authority of the valid search warrant that led to the discovery of the evidence, not the means of entry, there was simply no causal relationship between the violation and the seizing of the evidence. Because the discovery of the evidence was independent of the
As in Stevens, we now hold that suppression of the evidence seized in this case is not an appropriate remedy for the statutory violation at issue. Nothing in the language of § 5 provides any basis to infer that it was the legislators’ intent that the drastic remedy of exclusion be applied to a violation of the statute. Furthermore, the exclusionary rule “‘forbids the use of direct and indirect evidence acquired from governmental misconduct, such as evidence from an illegal police search.‘” Stevens, supra at 636, quoting People v LoCicero (After Remand), 453 Mich 496, 508-509; 556 NW2d 498 (1996) (citations omitted; emphasis supplied). The requirements of § 5 are ministerial in nature, and do not in any way lead to the acquisition of evidence; rather, these requirements come into play only after evidence has been seized pursuant to a valid search warrant. Because the exclusionary rule pertains to evidence that has been illegally seized, it would not be reasonable to conclude that the Legislature intended to apply the rule to a violation of the postseizure, administrative requirements of § 5. Just as there was no causal relationship between the violation of the “knock and announce” statute and the seizing of the evidence at issue in Stevens, there is in the instant case no causal relationship between the officers’ failure to provide defendant with a copy of the search warrant affidavit and the seizure of the firearms.
Application of the exclusionary rule would be particularly inappropriate in the case of a valid federal warrant. Were we to use the exclusionary rule in this
IV. CONCLUSION
The police officers in this case were acting under a valid search warrant and within the scope of that warrant. Defendant‘s constitutional rights were in no way infringed. There is no causal connection between the seizure of the firearms and the officers’ failure, after the execution of the warrant, to provide defendant with a copy of the search warrant affidavit.
We are unable to discern any legislative intent that a violation of the technical requirements of
CORRIGAN, C.J., and TAYLOR and MARKMAN, JJ., concurred with YOUNG, J.
WEAVER, J. I concur in the result, but write separately because I believe that the first step in resolving this matter is determining whether the state warrant requirements should be applied to a federal search warrant executed during a search conducted jointly by federal and state authorities. In my opinion, the state warrant requirements should not apply in this situation, and People v Pipok (After Remand), 191 Mich App 669, 671; 479 NW2d 359 (1991), was wrongly decided.1 Because the state warrant requirements should not apply to these facts, the firearms found in defendant‘s home should not have been suppressed.
Because I would decline to apply the state warrant requirements to these facts, I express no opinion concerning whether the exclusionary rule would apply to a procedural violation of the state requirements.
CAVANAGH, J. (dissenting). Because I disagree with the majority‘s decision to admit the challenged evidence, I respectfully dissent. I would affirm the judg-
First, I cannot agree that this Court‘s decision in People v Moten, 233 Mich 169; 206 NW 506 (1925), is not applicable to this case. There, this Court had to decide whether evidence gathered under a warrant that did not recite the basis for its issuance, as required by statute, had to be excluded. Id. at 174. Analyzing this question, the Court quoted approvingly from United States v Kaplan, 286 F 963, 968 (SD Ga, 1923), which stated that such warrant requirements ensure “that the accused may promptly know what is the accusation against him, upon what it is based....” The Moten Court concluded that the warrant was not complete and in violation of the statute. Thus, the Court concluded that the accused did not “promptly know” the accusation against him or its basis, and it excluded the evidence gathered under the warrant. See Moten, supra at 173-174. The majority distinguishes Moten, concluding that Moten may require exclusion of evidence gathered under a warrant that does not have the proper statutory form, but does not require exclusion when the asserted statutory shortcoming deals only with the procedure of executing the warrant. It characterizes defendant‘s complaint as only procedural, and not within Moten. See ante at 708-709.
However, the offered distinction does not account for the Moten Court‘s reasoning. There, the warrant did not recite the basis for its issuance, depriving the defendant of notice of the reasons for the search, and this Court excluded the evidence. In this case, even though the warrant may at some prior time have had
Second, I fear that the majority‘s search for legislative intent effectively upends the intent that is most clear. Though
In closing, in People v Sloan, 450 Mich 160, 184, n 18; 538 NW2d 380 (1995), this Court stated that excluding evidence as a remedy for a statutory violation was not a “new phenomenon.” It apparently has now become the old phenomenon, though, as the Court continues the trend it began in People v Stevens (After Remand), 460 Mich 626, 641; 597 NW2d 53 (1999), and continues in this case, toward admitting evidence despite statutory violations. In my view, this is an erroneous course, so I continue to be unable to join this trend. I would exclude the challenged evidence, affirm the Court of Appeals, and would not disapprove of the Court of Appeals decision in Chapin, supra. Therefore, I must respectfully dissent.
KELLY, J., concurred with CAVANAGH, J.