People of Michigan v. Steven Russell Brcic ( 2022 )

If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN, FOR PUBLICATION
July 14, 2022
Plaintiff-Appellant, 9:10 a.m.
v No. 359497
Cheboygan Circuit Court
STEVEN RUSSELL BRCIC, LC No. 20-006006-FH
Defendant-Appellee.
Before: GLEICHER, C.J., and GADOLA and YATES, JJ.
YATES, J.
On July 14, 2020, a bizarre chain of events led Defendant, Steven Brcic, to take refuge in
the Indian River and refuse commands from law enforcement officers to get out of the water. In
his wake, defendant left an overturned Chevy Tahoe sitting on its passenger’s side in the middle
of Prospect Street and three young witnesses who helped the police track down defendant. The
officers who used a boat to extract defendant from the river observed that defendant exhibited the
telltale signs of intoxication, so they obtained a search warrant for a blood draw. But the warrant
simply authorized a “blood draw” at the “Cheboygan County Jail.” Because the search warrant
failed to identify the jail inmate whose blood should be drawn, the trial court declared the warrant
defective and suppressed the fruits of the search, i.e., the blood taken from defendant. We granted
the prosecution’s application for leave to pursue an interlocutory appeal, and we now affirm the
trial court’s order of suppression.
I. FACTUAL BACKGROUND
The salient facts are set forth in the affidavit submitted in support of the application for a
search warrant:
On Tuesday, July 14, 2020, at 2000 hrs., Ofc. Chamberlain and I (Ofc.
Myerson) were dispatched to car accident [sic] on Prospect St., towards Columbus
Beach. Upon arrival, I observed a silver Tahoe, on it’s [sic] passenger side. I did
not observe anyone in or near the vehicle. Three juveniles walked up to us on scene
and said a male in his 30-40’s wearing a green and tan baseball hat [was] driving a
silver SUV westbound on Prospect St. The driver, later identified as Steven Russell
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Brcic, swerved toward the juveniles. They said he was the only occupant and he
yelled, “asshole” as he swerved back into the lane. Seconds later they heard the
crash. While on scene, Ofc. Chamberlain ordered Brcic to stop, however Brcic
jumped into the river and refused to exit. Brcic had large and fixed pupils,
bloodshot and glassy eyes and spoke with very slurred speech. While following
Brcic down the river, the juveniles positively identified Brcic. Deputies Simmons
and Supernault obtained the CCSD patrol boat and eventually pulled Brcic out and
he was handcuffed. Open and half full 24 ounce beer can was found inside the
vehicle. Brcic refused to perform field sobriety tasks. Brcic had very poor balance
and had a very strong odor of alcoholic based beverage coming from his breath and
person.
Officer Janet Myerson indicated on the affidavit form that she personally observed defendant and
believed he operated the vehicle “[w]hile under the influence of or impaired by alcoholic liquor.”
That conclusion was buttressed by a wealth of information, and defendant seems to recognize that
the affidavit supplied probable cause to support Officer Myerson’s assertion.
The affidavit prompted the issuance of a search warrant for a “blood sample,” but the search
warrant merely described “[t]he person, place or thing to be searched” as the “Cheboygan County
Jail.” Beyond that, the search warrant provided no guidance about whose blood should be drawn.
In its entirety, the search warrant issued at 2:17 a.m. on July 15, 2020, stated that probable cause
for a search existed, but offered no specificity other than a directive to execute the warrant at the
Cheboygan County Jail. The search warrant reproduced below readily reveals the flaw that led to
suppression of the blood drawn from defendant:
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In the wee hours of July 15, 2020, a law enforcement officer executed the search warrant
and obtained two vials of blood from defendant. The “Return and Tabulation” section indicated
that defendant received a copy of the affidavit, warrant, and tabulation. The Cheboygan County
Prosecutor thereafter charged defendant with operating while intoxicated, third offense (OWI-III),
MCL 257.625(1) and (9)(c); five separate offenses of assaulting, resisting, or obstructing a police
officer, MCL 750.81d; operating a vehicle with a suspended or revoked license, second offense,
MCL 257.904(1) and (3)(b); failure to report an accident, MCL 257.622; and maintaining an open
container of alcohol in a vehicle, MCL 257.624a, with a fourth-offense habitual offender notice,
MCL 769.12. Defendant moved to suppress the blood-draw evidence, contending that the warrant
failed to particularly describe the place to be searched and the items to be seized. In response, the
prosecution argued that the warrant was proper when read in combination with the affidavit. In a
written order, the trial court agreed with defendant and suppressed the blood-draw evidence. That
prompted the prosecution to seek leave to pursue an interlocutory appeal, which we granted. See
People v Brcic, unpublished order of the Court of Appeals, entered March 1, 2022 (Docket
No. 359497). As a result, we must now decide whether the trial court properly suppressed the
blood-draw evidence.
II. LEGAL ANALYSIS
The prosecution contends that the trial court erred by considering the validity of the search
warrant in isolation, rather than in combination with the supporting affidavit, and by concluding
that the warrant and affidavit failed to meet the particularity requirement of the Fourth Amendment
to the United States Constitution.1 This Court reviews de novo questions of constitutional law and
a trial court’s decision on a motion to suppress evidence. People v Joly, 336 Mich App 388, 395;
970 NW2d 426 (2021). The Fourth Amendment guarantees to the people the right “to be secure
in their persons, houses, papers, and effects, against unreasonable searches and seizures[.]” US
Const, Am IV. It further states that “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.” Id. Similarly, the Michigan Constitution of 1963 provides that “[t]he person,
houses, papers, possessions, electronic data, and electronic communications of every person shall
be secure from unreasonable searches and seizures,” and “[n]o warrant to search any place or to
seize any person or things or to access electronic data or electronic communications shall issue
without describing them, nor without probable cause, supported by oath or affirmation.” Const
1963, art 1, § 11. Absent a compelling reason, Michigan courts must construe Const 1963, art 1,
§ 11 to provide the same protection as that secured by the Fourth Amendment. People v Slaughter,
489 Mich 302, 311; 803 NW2d 171 (2011).
1
The prosecution also appears to argue in passing that the fruits of the warrant-based search may
be saved from suppression by the good-faith exception to the requirement of a valid search warrant.
See United States v Leon, 468 US 897, 916-919; 104 S Ct 3405; 82 L Ed 2d 677 (1984); People v
Debruyne, 505 Mich 957, 833; 936 NW2d 830 (2020). Because the prosecution did not advance
the good-faith exception in its application for leave to appeal and its supporting brief, this argument
is outside the bounds of the order granting leave to appeal. See Brcic, unpub order.
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“[T]he general rule is that officers must obtain a warrant for a search to be reasonable under
the Fourth Amendment.” People v Hughes, 506 Mich 512, 525; 958 NW2d 98 (2020). The Fourth
Amendment only allows search warrants “particularly describing the place to be searched, and the
persons or things to be seized.” US Const, Am IV. “The purpose of the particularity requirement
in the description of items to be seized is to provide reasonable guidance to the executing officers
and to prevent their exercise of undirected discretion in determining what is subject to seizure.”
People v Unger, 278 Mich App 210, 245; 749 NW2d 272 (2008) (quotation marks and citation
omitted). A search warrant is sufficiently particular “if the description is such that the officer with
a search warrant can, with reasonable effort, ascertain and identify” the people and property subject
to the warrant. Steele v United States, 267 US 498, 503; 45 S Ct 414; 69 L Ed 757 (1925). Whether
a search warrant satisfies the particularity requirement depends on the circumstances and the types
of items involved. Id.; Unger, 278 Mich App at 245. It is “well settled that a search may not stand
on a general warrant.” People v Hellstrom, 264 Mich App 187, 192; 690 NW2d 293 (2004).
The search warrant at issue in this case was “plainly invalid.” See Groh v Ramirez, 540
US 551, 557; 124 S Ct 1284; 157 L Ed 2d 1068 (2004) (search warrant “plainly invalid” because
it failed to describe “the type of evidence sought”). The warrant did not identify defendant and
ostensibly authorized a blood draw from any inmate at the Cheboygan County Jail. Indeed, the
prosecution does not dispute that the search warrant, standing alone, did not satisfy the particularity
requirement. Instead, the prosecution contends that the warrant incorporated by reference Officer
Myerson’s affidavit for a search warrant. The prosecution argues that the two documents together
met the particularity requirement because the affidavit identified defendant and detailed the police
investigation of his alleged criminal acts. But “[t]he fact that the application adequately described
the ‘things to be seized’ does not save the warrant from its facial invalidity.” Id. “The presence
of a search warrant serves a high function,” which “is not necessarily vindicated when some other
document, somewhere, says something about the objects of the search[.]” Id. (quotation marks
and citation omitted).
Nonetheless, the prosecution correctly asserts that a facially invalid search warrant may be
saved by incorporated documents. Id. at 557-558. As the Groh Court acknowledged, most federal
“Courts of Appeals have held that a court may construe a warrant with reference to a supporting
application or affidavit if the warrant uses appropriate words of incorporation, and if the supporting
document accompanies the warrant.” Id. As our Supreme Court recently noted, however, what
constitutes “appropriate words of incorporation” appears to be a puzzling question. See People v
Hughes, 506 Mich 512, 543-544 n 15; 958 NW2d 98 (2021).
We agree with a recent panel of this Court that “appropriate words of incorporation” must
direct the officers executing a search warrant to refer to an affidavit for guidance and not merely
state an affidavit was used to establish probable cause. People v Mustafa, unpublished opinion of
the Court of Appeals, issued June 17, 2021 (Docket No. 355153), p 6.2 As the Mustafa panel did,
2
Although our unpublished opinions are not binding, this Court may consider the reasoning in an
unpublished opinion if it is persuasive. People v Green, 260 Mich App 710, 720 n 5; 680 NW2d
477 (2004); MCR 7.215(C)(1).
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we find persuasive the holdings of the United States Court of Appeals for the Eighth Circuit in
United States v Szczerba, 897 F3d 929, 937 (CA 8, 2018), that “a warrant does not incorporate a
supporting affidavit when it merely states that the affidavit establishes probable cause” and the
Second Circuit in United States v George, 975 F2d 72, 75-76 (CA 2, 1992), that a recitation in a
warrant “issued upon the basis of an application and affidavit” did “not direct the executing officers
to refer to the affidavit for guidance concerning the scope of the search” and therefore did “not
amount to incorporation by reference.”3
In our case, the search warrant at issue does not direct the executing officer to refer to the
affidavit. Instead, the search warrant simply states in preprinted terms that “ , has sworn to the
attached affidavit” and directs the executing officer to “[l]eave a copy of this warrant with affidavit
attached . . . with the person whom [sic] the property was taken or at the premises.” The warrant’s
author made no affirmative or explicit references to the affidavit. Accordingly, as the United States
Court of Appeals for the Third Circuit observed when confronted with a search warrant similar to
the warrant in our case, “the only two references to the affidavit failed to incorporate expressly the
affidavit into the warrant’s description of the items to be searched for and seized if found.” United
States v Tracey, 597 F3d 140, 148 (CA 3, 2010). Thus, the warrant did not include “appropriate
words of incorporation” and cannot be saved by Officer Myerson’s affidavit for the search warrant.
Our conclusion is also bolstered by a review of additional federal caselaw. In United States
v Maxwell, 287 US App DC 234, 238; 920 F2d 1028 (1990), for example, the United States Court
of Appeals for the District of Columbia stated that, “[a]lthough there is little case law specifically
addressing what suffices to incorporate an affidavit into a warrant by reference, we believe that
something more is required than a boilerplate statement that the affidavit or affidavits presented to
the magistrate constitute probable cause for issuing the warrant[.]” The Maxwell court noted that
judges have “long recognized” “a fundamental distinction between the warrant and the underlying
affidavit” and have insisted that incorporation of an affidavit requires that the affidavit be attached
to the warrant and that there must be evidence of “the magistrate’s explicit intention to incorporate
the affidavit.” Id. In Maxwell, “[t]he magistrate accomplished this incorporation by typing, in the
places provided on the warrant for describing the premises to be searched and the items to be
seized, ‘Attachment #1’ and ‘Attachment #2’ respectively, thereby referencing the first two
attachments to the search warrant application filed with the magistrate.” Id. at 237 n 1. But the
Maxwell court held that the warrant did not incorporate a three-page affidavit. Id. at 237-238. It
explained:
The warrant did state, in preprinted language, that the agent presented an affidavit
to the issuing magistrate and that the magistrate “was satisfied that the
affidavits(s) . . . establish probable cause” justifying issuance of a warrant, but there
were no explicit words on the warrant indicating that the magistrate intended to
3
Although lower federal court decisions are not binding on state courts, they may be persuasive.
See Abela v GMC, 469 Mich 603, 606-607; 677 NW2d 325 (2004).
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incorporate the contents of the affidavit into the warrant and thereby limit its scope
by reference to the affidavit[.] [Id. at 238.]
The Maxwell court noted that the warrant would have incorporated the affidavit if, in addition to
referring to “Attachment #2” in the space for describing the items to be seized, the warrant had
also made some reference to the affidavit. Id. at 239 n 4.4
To sum up the law, “appropriate words of incorporation” are limited to phrases that reflect
the magistrate’s explicit intention to incorporate an affidavit or other supporting document for the
purpose of providing particularity in describing the place to be searched and the items to be seized
under the authority of a search warrant. In this case, the search warrant itself was plainly invalid,
and although it referenced the “attached affidavit,” it did not otherwise direct the executing officer
to refer to that additional document for such a purpose. Accordingly, the information provided in
the affidavit cannot be used to save the plainly invalid search warrant from its lack of particularity
as to the place to be searched and the items to be seized.
Affirmed.
/s/ Christopher P. Yates
/s/ Elizabeth L. Gleicher
/s/ Michael F. Gadola
4
Several other federal circuit courts have ruled similarly. In Baranski v Fifteen Unknown Agents
of Bureau of Alcohol, Tobacco & Firearms, 452 F3d 433, 439 (CA 6, 2006), the Sixth Circuit
concluded that the warrant incorporated the affidavit when the warrant, in the space provided for
identifying the items to be seized, instructed “[s]ee Attached Affidavit.” In United States v
Johnson, 541 F2d 1311, 1313, 1315-1316 (CA 8, 1976), the Eighth Circuit determined that the
warrant incorporated an affidavit when it provided that the officers were to seize “U.S. currency
as described in the affidavit.” And in Tracey, 597 F3d at 154, the Third Circuit explained that
incorporating the affidavit at issue could have been “accomplished by simply adding ‘see attached
affidavit’ in the appropriate section[.]’ ”
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