People v. Hawkins; People v. Scherf

Michigan Supreme Court
Lansing, Michigan 48909
_____________________________________________________________________________________________
Chief Justice Justices
Maura D. Corrigan Michael F. Cavanagh
Opinion
Elizabeth A. Weaver
Marilyn Kelly
Clifford W. Taylor
Robert P. Young, Jr.
Stephen J. Markman
____________________________________________________________________________________________________________________________
FILED JUNE 20, 2003
PEOPLE OF THE STATE OF MICHIGAN,
Plaintiff-Appellant,
v No. 120437
CHRISTOPHER LAMAR HAWKINS,
Defendant-Appellee.
__________________________________
PEOPLE OF THE STATE OF MICHIGAN,
Plaintiff-Appellant,
v No. 121698
MICHAEL BRANDON SCHERF,
Defendant-Appellee.
__________________________________
BEFORE THE ENTIRE BENCH
YOUNG, J.
We granted leave to appeal in these cases to consider
whether the lower courts properly applied the exclusionary
rule to evidence seized pursuant to (1) a search warrant that
was issued in violation of MCL 780.653 and (2) a bench warrant
that was issued in violation of MCR 3.606(A).
Because we conclude that neither the statute nor the
court rule contemplates application of the exclusionary rule,
we reverse in both cases. In People v Hawkins (see
unpublished opinion per curiam of the Court of Appeals, issued
September 28, 2001 [Docket No. 230839]), we hold that evidence
of firearms and cocaine seized pursuant to a search warrant
should not have been suppressed on the ground that the warrant
was issued in violation of the affidavit requirements of MCL
780.653(b). In People v Scherf (see 251 Mich App 410; 651
NW2d 77 [2002]), we hold that evidence of marijuana seized
from defendant following his arrest should not have been
suppressed on the ground that the bench warrant pursuant to
which he was arrested was issued in violation of the affidavit
requirements of MCR 3.606(A).
I. FACTUAL 1 AND PROCEDURAL BACKGROUND
A. PEOPLE V HAWKINS
Detective Todd Butler of the Grand Rapids Police
1
These cases have not yet been tried. Our statement of
facts is derived from the preliminary examination and motion
hearing transcripts and from the documentation contained in
the lower court records.
2
Department received tips from two informants that illegal
controlled substances were being sold from a residence located
at 921 Humbolt, S.E., in Grand Rapids. On the basis of the
information provided by these sources, Butler sought a search
warrant to search the residence. Butler’s affidavit set forth
the following facts in support of the issuance of the warrant:
1. Your affiant received information from an
informant on 10/14/99 that the resident of 921
Humbolt S.E. was involved in the sale of narcotics.
The informant stated the residence [sic] is selling
the controlled substance crack cocaine. The
informant described the resident and seller of the
controlled substance as “Chris,” B/M, approx. 20,
5'8", 170 [lbs], medium build/complexion, short
hair.
2. Your affiant met with a reliable and
credible informant on 11/3/99. Your affiant was
advised that the informant had observed the
controlled substance cocaine available for sale
from the residence within the past 36 hours.
3. Your affiant was advised by the informant
the entry door to the suspects [sic] apartment has
been reinforced to delay a police entry.
On November 3, 1999, a judge of the 61st District Court
issued the requested warrant, and the residence was searched
the same day. During the search, police seized two stolen
firearms, approximately 20 grams of cocaine, and other
contraband. Defendant, who was not present during the search,
was stopped by police while driving his vehicle. Defendant
was then arrested and later bound over for trial on several
3
charges.2
Defendant sought suppression of the evidence seized in
the execution of the search warrant, arguing that the
affidavit in support of the warrant was constitutionally
deficient in that it did not support a finding of probable
cause, the information it contained was stale, and it did not
clearly reveal whether one or two informants had supplied the
information. Defendant additionally contended that the
affidavit did not meet the requirements of MCL 780.653(B)
because it did not include information concerning the
credibility of the unnamed informants or the reliability of
the information they supplied.
The circuit court granted defendant’s motion to suppress
the evidence and dismissed the case on the grounds that the
affidavit was both constitutionally deficient and in violation
of MCL 780.653. The court declined the prosecutor’s
invitation to apply the federal “good-faith exception,” under
which the Fourth Amendment exclusionary rule is not applicable
to evidence seized by officers acting in reasonable reliance
2
Defendant was charged with possession with intent to
deliver less than 50 grams of cocaine, MCL 333.7401(2)(a)(iv);
maintaining a drug house, MCL 333.7405(1)(d); possession of a
firearm by a felon, MCL 750.224f; driving with a suspended
license, MCL 257.904(3)(b); and two counts of receiving and
concealing a stolen firearm, MCL 750.535b. Additionally,
defendant was charged with being a second-time drug offender,
MCL 333.7413(2), and a fourth-time felony offender, MCL
769.12.
4
on a warrant that is subsequently adjudged constitutionally
deficient.3
On appeal, the Court of Appeals affirmed the circuit
court’s order to suppress evidence on the sole basis that the
affidavit supporting the search warrant did not meet the
requirements of MCL 780.653. Slip op at 3. The panel
concluded that People v Sloan, 450 Mich 160; 538 NW2d 380
(1995), in which this Court held that evidence obtained under
a search warrant issued in violation of § 653 must be
suppressed, was dispositive. Slip op at 2. Accordingly, the
panel declined to address the constitutionality of the warrant
or the prosecution’s argument that the good-faith exception
was applicable. Id. at 3.
We granted the prosecution’s application for leave to
appeal to this Court, limited to the issue whether the
exclusionary rule applies to a violation of § 653. 466 Mich
860 (2002).
B. PEOPLE V SCHERF
In a prior case, defendant pleaded guilty of
manufacturing with intent to deliver between five and forty­
five kilograms of marijuana in violation of MCL
333.7401(2)(D)(ii) and was sentenced to probation. Defendant
3
See Arizona v Evans, 514 US 1; 115 S Ct 1185; 131 L Ed
2d 34 (1995); United States v Leon, 468 US 897; 104 S Ct 3405;
82 L Ed 2d 677 (1984).
5
allegedly moved out of Michigan without permission and
thereafter failed to report to his probation officer in
violation of two of the terms of his probation. Consequently,
defendant’s probation officer filed a standard form petition
requesting that a bench warrant be issued for his arrest. The
petition contained the following statements:
Petitioner requests that a bench warrant be
issued and Michael Brandon Scherf be arrested and
held in contempt of court for the following
reason(s):
Violation of Rule Number 3: The defendant has
failed to report as ordered and his whereabouts are
unknown. Violation of Rule Number 4: Failure to
notify agent of change of address.
The petition contained the statement, “I declare that the
statements above are true to the best of my information,
knowledge, and belief,” and was signed by the probation
officer. The district court issued the requested bench
warrant.
Subsequently, police were interviewing defendant in
connection with an unrelated larceny complaint when they
discovered, via the Law Enforcement Information Network
(LEIN), the outstanding bench warrant for his arrest.
Defendant was arrested pursuant to the warrant. During a
search incident to the arrest, police seized several grams of
marijuana from defendant’s person. Thereafter, defendant was
charged with possession of marijuana in violation of MCL
6
333.7403(2)(d).
Defendant sought suppression of evidence of the marijuana
on the ground that the bench warrant petition was technically
deficient in that it was not supported by affidavits as
required by MCR 3.606(A), which governs contempt offenses
committed outside the immediate presence of the court. The
prosecutor conceded that MCR 3.606(A) was violated because no
affidavit was submitted in support of the probation officer’s
petition. The prosecutor argued, however, that the district
court division of the Isabella County Trial Court should apply
the federal “good-faith exception” to the exclusionary rule.
The district court division denied defendant’s motion, holding
that the bench warrant petition was confirmed by oath or
affirmation and was therefore properly issued. Additionally,
the district court division noted that it found Arizona v
Evans, 514 US 1; 115 S Ct 1185; 131 L Ed 2d 34 (1995), which
reaffirmed and applied the good-faith exception, to be
persuasive authority.
Defendant appealed, and the circuit court reversed the
district court division’s order, granted defendant’s motion to
suppress the marijuana evidence, and dismissed the case. The
court held that although the failure to provide an affidavit
with the bench warrant petition was merely “technical,” it
rendered the warrant invalid. The court rejected the
7
prosecutor’s argument that the good-faith exception was
applicable, stating on the record that the exception was not
recognized in Michigan.
The prosecutor sought leave to appeal to the Court of
Appeals, asserting that the good-faith exception should be
applied under the circumstances. The Court granted the
prosecutor’s application and affirmed the circuit court
division’s order. 251 Mich App 410. The majority4 noted that
the bench warrant petition “was not supported by an affidavit
as required by MCR 3.606," id. at 411, and that “it is
undisputed that defendant’s arrest, and the resultant search
of defendant and seizure of evidence, were based on an invalid
bench warrant and, therefore, the arrest and consequential
search were unlawful,” id. at 415. The majority indicated
that it would have applied the good-faith exception to the
exclusionary rule and reversed the circuit court division’s
decision if it were not obligated under MCR 7.215(I)(1) to
follow People v Hill, 192 Mich App 54; 480 NW2d 594 (1991), in
which another panel of the Court specifically declined to
recognize the good-faith exception to the exclusionary rule.5
215 Mich App 415-416.
4
Judge Jessica R. Cooper concurred in the result only.
5
The Court subsequently declined to convene a special
panel to resolve the potential conflict with Hill, supra.
People v Scherf, 251 Mich App 805 (2002).
8
This Court granted the prosecutor’s application for leave
to appeal the judgment of the Court of Appeals. 467 Mich 856(2002).
II. STANDARD OF REVIEW
Questions of law relevant to a motion to suppress
evidence are reviewed de novo. People v Hamilton, 465 Mich
526, 529; 638 NW2d 92 (2002); People v Stevens (After Remand),
460 Mich 626, 631; 597 NW2d 53 (1999).6
We must determine in these cases whether suppression of
evidence is required when MCL 780.653 or MCR 3.606(A) has been
violated. Where a state statute is involved, “whether
suppression is appropriate is a question of statutory
interpretation and thus one of legislative intent.” People v
Sobczak-Obetts, 463 Mich 687, 694; 625 NW2d 764 (2001),
quoting Stevens, supra at 644, quoting People v Wood, 450 Mich
399, 408; 538 NW2d 351 (1995) (BOYLE , J., concurring).
Similarly, “[t]he interpretation of a court rule is a question
of law and is reviewed de novo.” Hinkle v Wayne Co Clerk, 467
Mich 337, 340; 654 NW2d 315 (2002); see also People v Petit,
466 Mich 624, 627; 648 NW2d 193 (2002).
6
See also People v Hudson, 465 Mich 932 (2001).
9
III. ANALYSIS
A. INTRODUCTION
First and foremost, it is important to understand what is
not before this Court in deciding the issues presented in
these cases. We are concerned solely with application of the
exclusionary rule to a statutory violation (People v Hawkins)
and to a court rule violation (People v Scherf). The judgment
of the Court of Appeals in Hawkins was based exclusively on
the conceded violation of MCL 780.653, and the Court
specifically declined to address the constitutional validity
of the search warrant affidavit or the good-faith exception to
the constitutional exclusionary rule. Likewise, in Scherf we
are not concerned with the constitutional validity of the
bench warrant or of the potential application of the good­
faith exception. Although the Court of Appeals majority in
Scherf indicated a willingness to apply the good-faith
exception in order to avoid suppression of the evidence for
the conceded violation of MCR 3.606(A), application of that
exception would have been wholly premature, given that neither
the circuit court division nor the Court of Appeals panel had
found a constitutional violation in the first instance.7
7
Moreover, defendant Scherf did not preserve for our
review any argument that the affidavit in support of the
issuance of the bench warrant was constitutionally deficient.
Rather, his sole argument in support of his motion to suppress
was that the affidavit did not meet the technical requirements
of MCR 3.606(A).
10
With that in mind, we must determine whether the
statutory and court rule violations in these cases warrant
suppression of the evidence.
B. THE EXCLUSIONARY RULE
The exclusionary rule is a judicially created remedy that
originated as a means to protect the Fourth Amendment right of
citizens to be free from unreasonable searches and seizures.
See Stevens, supra at 634-635; see also Weeks v United States,
232 US 383; 34 S Ct 341; 58 L Ed 652 (1914), overruled on
other grounds in Elkins v United States, 364 US 206; 80 S Ct
1437; 4 L Ed 2d 1669 (1960); Adams v New York, 192 US 585; 24
S Ct 372; 48 L Ed 575 (1904); Boyd v United States, 116 US
616; 6 S Ct 524; 29 L Ed 746 (1886). The exclusionary rule,
modified by several exceptions,8 generally bars the
introduction into evidence of materials seized and
observations made during an unconstitutional search. Stevens,
supra at 634, 636. However, application of the exclusionary
8
For example, the “ good-faith exception,” which has been
asserted by the prosecutors in the cases at bar, permits
admission of evidence seized by police officers in reasonable
reliance on a constitutionally defective search warrant. See
Arizona, supra; Leon, supra. As noted, because of the
procedural posture of the instant cases, we do not reach the
constitutionality of the warrants at issue and, consequently,
we do not address the applicability of the good-faith
exception to a violation of Michigan’s counterpart to the
Fourth Amendment, Const 1963, art 1, § 11. We note that leave
has recently been granted in People v Goldston, 467 Mich 938(2003), in which this Court will consider whether to adopt and
apply a good-faith exception to the exclusionary rule.
11
rule is not constitutionally mandated, and
[t]he question whether the exclusionary rule’s
remedy is appropriate in a particular context [is]
regarded as an issue separate from the question
whether the Fourth Amendment rights of the party
seeking to invoke the rule were violated by police
conduct. [Illinois v Gates, 462 US 213, 223; 103 S
Ct 2317; 76 L Ed 2d 527 (1983).]
Moreover, the exclusionary rule is not designed to “make
whole” a citizen who has been subjected to an unconstitutional
search or seizure. Rather, the aim of the rule is one of
police deterrence:
The wrong condemned by the [Fourth] Amendment
is “fully accomplished” by the unlawful search or
seizure itself . . . and the exclusionary rule is
neither intended nor able to “cure the invasion of
the defendant’s rights which he has already
suffered.” . . . 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 Leon, 468 US 897, 906; 104 S Ct
3407; 82 L Ed 2d 677 (1984).]
Irrespective of the application of the exclusionary rule
in the context of a constitutional violation, the drastic
remedy of exclusion of evidence does not necessarily apply to
a statutory violation.9 Whether the exclusionary rule should
9
The exclusionary rule is particularly harsh in that it
is neither narrowly tailored nor discerning of the magnitude
of the error it is intended to deter. By taking no cognizance
of the effect of a police error upon a particular defendant,
or of the actual guilt or innocence of a defendant, the
exclusionary rule lacks proportionality. Given these
characteristics, we decline to expand the use of this rule in
(continued...)
12
be applied to evidence seized in violation of a statute is
purely a matter of legislative intent. Hamilton, supra at
534.
“‘Because our judicial role precludes imposing
different policy choices from those selected by the
Legislature, our obligation is, by examining the
statutory language, to discern the legislative
intent that may reasonably be inferred from the
words expressed in the statute. . . . When a
statute is clear and unambiguous, judicial
construction or interpretation is unnecessary and
therefore, precluded.’” [Sobczak-Obetts, supra at
694-695 (citations omitted).]
Likewise, whether suppression of evidence on the basis of
the violation of a court rule is appropriate is controlled by
the language of the rule. “This Court applies principles of
statutory interpretation to the interpretation of court rules.
When the language is unambiguous, we must enforce the meaning
plainly expressed, and judicial construction is not
permitted.” Hinkle, supra at 340.
C. PEOPLE V HAWKINS
At issue in Hawkins is whether evidence seized from a
residence pursuant to a search warrant was properly suppressed
because the affidavit supporting the search warrant did not
meet the requirements of MCL 780.653 in Michigan’s search
warrant act, MCL 780.651 to 780.659. MCL 780.653 provides, in
9
(...continued)
the absence of an explicit constitutional or legislative
requirement.
13
pertinent part:
The magistrate’s finding of reasonable or
probable cause shall be based upon all the facts
related within the affidavit made before him or
her. The affidavit may be based upon information
supplied to the complainant by a named or unnamed
person if the affidavit contains 1 of the
following:
* * *
(b) If the person is unnamed, affirmative
allegations from which the magistrate may conclude
that the person spoke with personal knowledge of
the information and either that the unnamed person
is credible or that the information is reliable.[10]
MCL 780.653(b) derives from the defunct “two-pronged test”
enunciated by the United States Supreme Court in Aguilar v
Texas, 378 US 108; 84 S Ct 1509; 12 L Ed 2d 723 (1964), and
Spinelli v United States, 393 US 410; 89 S Ct 584; 21 L Ed 2d
637 (1969), for determining whether an anonymous informant’s
tip established probable cause for issuance of a search
warrant. See People v Sherbine, 421 Mich 502, 509; 364 NW2d
658 (1984). Under the Aguilar-Spinelli formulation as it was
10
Section 1 of the search warrant act, MCL 780.651,
provides in part:
(1) When an affidavit is made on oath to
a magistrate authorized to issue warrants in
criminal cases, and the affidavit establishes
grounds for issuing a warrant pursuant to this
act, the magistrate, if he or she is satisfied
that there is probable cause for the search,
shall issue a warrant to search the house,
building, or other location or place where the
property or thing to be searched for and seized
is situated.
14
generally understood, a search warrant affidavit based on
information supplied by an anonymous informant was required to
contain both (1) some of the underlying circumstances
evidencing the informant’s basis of knowledge and (2) facts
establishing either the veracity or the reliability of the
information. See Gates, supra at 228-229; Sherbine, supra at
509.11
This Court has previously held that a violation of the
affidavit requirements of MCL 780.653 warranted suppression of
evidence. Sloan, supra; Sherbine, supra. Because we are
unable to conclude that the Legislature intended application
of the exclusionary rule where the requirements of § 653 have
not been met, we overrule Sloan and Sherbine to the extent
that they so hold, and we conclude that defendant was not
entitled to suppression of evidence on the basis of the
statutory violation.
In Sherbine, this Court held that suppression of evidence
11
In Gates, the United States Supreme Court abandoned the
Aguilar-Spinelli two-pronged test in favor of a “totality of
the circumstances” approach. Accordingly, in determining
whether a search warrant affidavit that is based on hearsay
information passes Fourth Amendment muster,
[t]he task of the issuing magistrate is simply to
make a practical, common-sense decision whether,
given all the circumstances set forth in the
affidavit before him, . . . there is a fair
probability that contraband or evidence of a crime
will be found in a particular place. [Gates, supra
at 238.]
15
was required where a search warrant affidavit violated a
previous version of § 65312 in that it did not make any showing
that an informant was a credible person and that he supplied
reliable information.13 Although this Court specifically
declined to decide whether satisfaction of the federal
Aguilar-Spinelli test is required under Const 1963, art 1, §
11—that is, whether the requirements of § 653 are rooted in
Michigan’s constitutional search and seizure provision—this
Court nevertheless applied the exclusionary rule to the
statutory violation. In so doing, this Court failed to
examine the language of § 653 to determine whether the
Legislature intended that such a drastic remedy be applied to
a violation of the statutory affidavit requirements. Rather,
this Court relied on People v Dixon, 392 Mich 691; 222 NW2d
12
In 1984, § 653 provided:
The magistrate’s finding of reasonable or
probable cause shall be based upon all the facts
related within the affidavit made before him. The
affidavit may be based upon reliable information
supplied to the complainant from a credible person,
named or unnamed, so long as the affidavit contains
affirmative allegations that the person spoke with
personal knowledge of the matters contained
therein.
13
We concluded in Sherbine that preamendment § 653
expanded the Aguilar-Spinelli test to require that the
affidavit set forth facts showing both that a confidential
informant was credible and that the information was reliable.
Sherbine, supra at 509-510. The current version of § 653, as
amended by 1988 PA 80, makes clear that a showing of either
credibility or reliability is required.
16
749 (1974), in which this Court similarly applied the
exclusionary rule to a statutory violation without performing
the requisite examination of legislative intent.14 We
concluded, “The statutory violation here is clear. The
statute requires proof that the informant who supplied the
information be credible. The affidavit here failed to satisfy
this requirement. The evidence must therefore be suppressed.”
Sherbine, supra at 512.
Justice Boyle dissented, opining that preamendment § 653
required a showing of either reliability or credibility, and
that this Court had misconstrued the statute as an expansion
of Aguilar. Sherbine, 421 Mich 513-514. Additionally,
Justice Boyle questioned whether suppression of the evidence
was required under the circumstances: “I cannot conceive of
a reason why we should apply the exclusionary rule to the
supposed violation of a statute where the affidavit would pass
14
In Dixon, this Court held that suppression of evidence
was required, and reversed the defendant’s conviction on the
ground that a search of the defendant at a police station was
in derogation of his right to bail under MCL 780.581. This
Court cited decisions from California and Oregon courts
suppressing evidence for similar statutory violations, but
noted that in several of those decisions the courts
specifically found Fourth Amendment violations. Id. at 704,
n 18. Acknowledging that its decision was not premised on the
Fourth Amendment, id., this Court nevertheless concluded that
suppression of evidence obtained in derogation of the
statutory right to bail was required because “no other remedy
[was] as likely to assure its full enforcement,” id. at 705.
17
constitutional muster under either Const 1963, art 1, § 11, or
US Const, Am IV . . . .” Id. at 516.
In Sloan, this Court held that a violation of a different
provision in the current version of § 653 required application
of the exclusionary rule. A search warrant was issued to
obtain a blood test from the defendant, who was later charged
with manslaughter with a motor vehicle,15 operating a motor
vehicle while under the influence of intoxicating liquor
causing death,16 and felonious driving.17 The portion of § 653
at issue was the provision that “[t]he magistrate’s finding of
reasonable or probable cause shall be based on all the facts
related within the affidavit made before him or her.” This
Court held that this provision was violated when the
magistrate looked beyond the affidavit, to unrecorded oral
testimony of a police officer, in issuing the search warrant.18
Relying on Sherbine, this Court further concluded that the
blood test evidence had to be excluded because of the
15
MCL 750.321.
16
MCL 257.625(4).
17
MCL 752.191.
18
As in Sherbine, the Sloan Court specifically stated that
it was not addressing whether the probable cause determination
was constitutionally defective. Sloan, supra at 183 n 17.
Indeed, this Court noted that the affidavit requirement of §
653 was not constitutionally mandated under either Const 1963,
art 1, § 11 or the Fourth Amendment. Id.
18
statutory violation:
In Sherbine, we held that evidence obtained
specifically in violation of MCL 780.653 . . . must
be excluded. The Legislature appears to have
acquiesced in this particular construction of MCL
780.653 . . . . While the Legislature subsequently
amended MCL 780.653 . . . because it disagreed with
portions of our statutory analysis provided in
Sherbine, it is significant that the Legislature
when instituting such amendments did not alter our
holding that evidence obtained in violation of the
statute must be excluded. To change the law in
that regard would have been an easy and convenient
task for the Legislature. Neither the language in
the amendments, nor the legislative history
pertinent to the amendments provide a basis for
concluding that a sanction other than exclusion is
appropriate for the violation of MCL 780.653 . . .
. Clearly, the Legislature shares our view that no
remedy other than exclusion is as likely to assure
the full enforcement of all of the requirements
under MCL 780.653 . . .—a statute specifically
designed by the Legislature to implement the
constitutional mandate for probable cause under
Const 1963, art 1, § 11. [Sloan, supra at 183­
184.]
Justice Boyle, joined by Justices Riley and Weaver,
dissented, arguing that the statute was complied with and
that, in any event, a violation of § 653 did not require
application of the exclusionary rule:
Application of the exclusionary rule to any
technical violation of our search warrant statute
that may have occurred in the present case is
unwarranted. Particularly where the magistrate is a
sitting judge, as are virtually all magistrates in
this state, I cannot conclude that the risk of
relying on after-the-fact allegations are [sic] so
substantial that we must suppress evidence. The
exclusionary rule is intended to serve a deterrent
purpose, and loses any useful force and effect when
applied to technical errors that do not rise to the
level of negligent or wilful conduct, serving then
19
only to deprive the trier of fact of relevant and
probative evidence. As explained by the United
States Supreme Court in Michigan v Tucker, 417 US
433, 446-447; 94 S Ct 2357; 41 L Ed 2d 182 (1974):
* * *
“The deterrent purpose of the exclusionary
rule necessarily assumes that the police have
engaged in willful, or at the very least negligent,
conduct which has deprived the defendant of some
right. By refusing to admit evidence gained as a
result of such conduct, the courts hope to instill
in those particular investigating officers, or in
their future counterparts, a greater degree of care
toward the rights of an accused. Where the
official action was pursued in complete good faith,
however, the deterrence rationale loses much of its
force.” [Sloan, supra at 200 (BOYLE , J.,
dissenting).]
Justice Boyle additionally criticized the majority’s
invocation of the “legislative acquiescence” doctrine:
The majority’s assertion of legislative
acquiescence in the decision in Sherbine . . . to use of
the exclusionary rule to suppress evidence obtained in
alleged violation of the statute before us is wholly
mistaken. In Sherbine, this Court’s majority
interpreted the former version of the statute as if it
imposed a more restrictive standard than the Fourth
Amendment and suppressed evidence on the basis of that
consideration. The swift reaction of the Legislature
was to amend MCL 780.653 . . . to make it clear that the
Court was incorrect in concluding that what had occurred
was a statutory violation. The Legislature had no need
to say what should not be excluded; it relied on the
Court’s word that were it clear that the Legislature had
authorized the warrant, suppression would not be
ordered.
Acting on our representation, the amended
legislation tracked the Fourth Amendment. Because “our
holding that evidence obtained in violation of the
statute must be excluded” . . . was wholly derived from
our narrow reading of MCL 780.653 . . . , the
legislative amendment of the statute is not an
20
acquiescence in, but rather a repudiation of, the view
in Sherbine that the evidence should be excluded.
[Sloan, supra at 202-203 (BOYLE , J., dissenting).]
We agree with Justice Boyle and once again reaffirm that
where there is no determination that a statutory violation
constitutes an error of constitutional dimensions,
application of the exclusionary rule is inappropriate unless
the plain language of the statute indicates a legislative
intent that the rule be applied. Hamilton, supra at 534;
Sobczak-Obetts, supra at 694. Moreover, we reject the Sloan
Court’s conclusion that the Legislature’s silence constituted
agreement with this Court’s application of the exclusionary
rule in Sherbine. As we have repeatedly stated, the
“legislative acquiescence" principle of statutory
construction has been squarely rejected by this Court because
it reflects a critical misapprehension of the legislative
process. See Robertson v DaimlerChrysler Corp, 465 Mich 732,
760 n 15; 641 NW2d 567 (2002); Nawrocki v Macomb Co Rd Comm,
463 Mich 143, 177-178 n 33; 615 NW2d 702 (2000). Rather,
“Michigan courts [must] determine the Legislature’s intent
from its words, not from its silence.” Donajkowski v Alpena
Power Co, 460 Mich 243, 261; 596 NW2d 574 (1999).
The dissent asserts that “the majority [has] imposed its
own policy on the Legislature . . . .” Post at 10.
Respectfully, we disagree and believe that it is not this
21
majority but the Sherbine and Sloan majorities that imposed
their own policy choices on the Legislature with respect to
the application of the exclusionary rule to a violation of §
653. Citing nothing in the text of the statute, the Sherbine
Court simply declared, without further analysis, that because
the statute was violated, “[t]he evidence must . . . be
suppressed.” Sherbine, supra at 512. Similarly, the Sloan
majority opined that “no remedy other than exclusion is as
likely to assure the full enforcement of all of the
requirements under MCL 780.653 . . . .” Sloan, supra at 184.
The dissent purports to apply a “contextual analysis” of
§ 653 in reaching the conclusion that the Legislature
intended the exclusionary rule to apply to a violation of
that statute. Yet, as the dissenters readily admit, the text
of § 653 is entirely silent in this regard. Post at 2-3,
generally. Clearly, there is no principled basis for the
contention that this Court’s injection of the exclusionary
rule in Sherbine and Sloan is grounded in the statutory text.
The dissent attempts to draw a distinction between
legislative silence and reenactment of a statute following
judicial interpretation. While we have no reason to contest
that the “reenactment doctrine” can sometimes be a useful
tool for determining legislative intent where the statutory
language is ambiguous, such a tool of construction may not be
22
utilized to subordinate the plain language of a statute.
This Court’s constitutional charge to interpret the laws does
not end merely because the Legislature reenacts a statute.19
In the absence of a clear indication that the Legislature
intended to either adopt or repudiate this Court’s prior
construction, there is no reason to subordinate our primary
principle of construction–to ascertain the Legislature’s
intent by first examining the statute’s language–to the
reenactment rule.20
19
Taken to its logical conclusion, application of the
reenactment doctrine under circumstances such as those present
in the case at bar would undoubtedly lead to results never
anticipated or intended by the Legislature. For example,
suppose that the Legislature amends a statutory code to make
all pronouns gender-neutral, but otherwise reenacts the code
as originally written. It would be neither accurate nor
reasonable to presume, as the dissent would have us do, that
the Legislature intended to adopt in toto every appellate
decision construing or applying the code.
20
Even the United States Supreme Court has acknowledged
that there has been no stable, consistent formulation of this
amorphous doctrine. Helvering v Griffiths, 318 US 371, 396;
63 S Ct 636; 87 L Ed 843 (1943). Under the broadest
formulation of the reenactment doctrine, there is no reason
why only judicial interpretations of statutes should be
incorporated by implication upon reenactment of a statute.
Indeed, even administrative interpretations of statutes have
been recognized as binding. See United States v Safety Car
Heating & Lighting Co, 297 US 88, 95; 56 S Ct 353; 80 L Ed 500(1936).
Our point is not that the reenactment doctrine, properly
limited and applied, is without value as a statutory
construction aid, but that it cannot be employed
indiscriminately and without recognition of the fact that its
more expansive versions impose an unreasonable burden on the
(continued...)
23
The Legislature has stated its views on the construction
of its statutes, in part by providing that all words and
phrases that are not terms of art21 be given their “common and
20
(...continued)
Legislature to affirmatively scan our appellate casebooks to
discern judicial constructions of statutes that the
Legislature desires for entirely other reasons to amend.
Applying the reenactment rule here would, in our view, be the
effective equivalent of imposing an affirmative duty on the
Legislature to keep abreast of all binding judicial
pronouncements involving the construction of statutes and to
revise those statutes to repudiate any judicial construction
with which it disagrees. For similar reasons, we have
rejected precisely such a duty in other contexts. See, e.g.,
Donajkowski, supra at 261-262.
To apply the reenactment doctrine under these
circumstances would not only likely fail to give effect to
legislative intent, but would also presumably violate
separation of powers principles. See Grabow, Congressional
silence and the search for legislative intent: A venture into
“speculative unrealites,” 64 BUL R 737, 759-761 (1984).
Accordingly, before we ignore the plain meaning of the text of
a statute, we reject formulations of the reenactment doctrine
involving circumstances that fail to demonstrate the
Legislature's conscious consideration of a judicial decision,
coupled with some compelling indication that the Legislature
intended to accept or reject that interpretation. As is
illustrated by Justice Boyle’s dissent in Sloan, supra,
discussed at pp 22-23, it is a perilous exercise to attempt to
discern legislative intent from the Legislature’s silence,
even when a statutory amendment responds to some portion of a
judicial decision. See Sloan, supra at 202-203.
21
We note that in the case of a term of art, application
of the “reenactment rule” would generally be appropriate
because such a term by definition carries with it the
construction accorded it by the courts. See People v Law, 459
Mich 419, 425 n 8; 591 NW2d 20 (1999). In contrast, in this
case we are confronted with the amendment of a statute
following the imposition of a judicially created remedy that
is grounded nowhere in the text of the statute. Our
dissenting colleagues opine that “the Legislature could have
(continued...)
24
approved” meanings. MCL 8.3a. Such is consistent with our
most fundamental principle of construction that there is no
room for judicial interpretation when the Legislature’s
intent can be ascertained from the statute’s plain and
unambiguous language. See Stanton v Battle Creek, 466 Mich
611, 615; 647 NW2d 508 (2002). Accordingly, we decline to
apply the “reenactment rule” when the Legislature’s intent is
evidenced by the plain language of the statute and there is
no clear indication of any intent to adopt or repudiate this
Court’s prior construction.
Nothing in the plain language of § 653 provides us with
a sound basis for concluding that the Legislature intended
that noncompliance with its affidavit requirements, standing
alone, justifies application of the exclusionary rule to
evidence obtained by police in reliance on a search warrant.22
21
(...continued)
easily modified the applicability of the exclusionary rule
when enacting 1988 PA 80,” post at 6-7, and that therefore the
Legislature must have intended to adopt, sub silentio, the
exclusionary rule. However, an equally plausible conclusion
is that, because the Legislature could easily have modified
the statute to expressly provide for the application of the
exclusionary rule, it must have intended to reject this
Court’s decision in Sherbine. This precisely illustrates one
of the reasons that the “legislative acquiescence” doctrine is
an untrustworthy indicator of legislative intent, as well as
why the “reenactment rule” should not be applied as an aid in
interpreting legislative silence.
22
Any error concerning the search warrant in this case
rests squarely on the shoulders of the district court judge,
(continued...)
25
Moreover, application of the exclusionary rule is
particularly inappropriate under the circumstances of this
case, where the objective of the rule—to sanction police
misconduct as a means of deterrence—would not be served.23
See Sobczak-Obetts, supra at 712. Because we applied the
exclusionary rule to the statutory violations at issue in
Sherbine and Sloan without performing the requisite
examination of legislative intent, we are compelled to
overrule those decisions to the extent that they conflict
with today’s holding.24
22
(...continued)
whose duty it is to ensure that warrants are issued in
compliance with state and federal law. There is no indication
in the record that the officer who applied for the search
warrant, or the officers who executed the warrant, acted
improperly.
23
Indeed, we note that the Legislature has specifically
provided for a sanction in the case of misconduct in the
execution or procurement of a search warrant. See MCL 780.657
(“[a]ny person who in executing a search warrant, wilfully
exceeds his authority or exercises it with unnecessary
severity, shall be fined not more than $1,000.00 or imprisoned
not more than 1 year”); MCL 780.658 (“[a]ny person who
maliciously and without probable cause procures a search
warrant to be issued and executed shall be fined not more than
$1,000.00 or imprisoned not more than 1 year”). That the
Legislature has elected to deter police misconduct in the
manner indicated by MCL 780.657 and MCL 780.658 further
evidences the lack of any legislative intent that the
exclusionary rule be applied under the circumstances of this
case.
24
Our dissenting colleagues charge us with ignoring this
Court’s prohibition-era decisions in People v Knopka, 220 Mich
540; 190 NW 731 (1922), People v Moten, 233 Mich 169; 206 NW
(continued...)
26
Accordingly, we conclude that the Court of Appeals erred
in holding that suppression of the evidence was required as
a remedy for the violation of § 653 in this case. Because
the Court of Appeals declined to address the prosecutor’s
additional arguments on appeal, we remand this matter to that
Court for further proceedings.
D. People v Scherf
The Court of Appeals held in Scherf that a bench warrant
issued in violation of a court rule was invalid and that
suppression of evidence obtained in connection with
defendant’s arrest pursuant to that warrant was therefore
24
(...continued)
506 (1925), People v Bules, 234 Mich 335; 207 NW 818 (1926),
and People v Galnt, 235 Mich 646; 209 NW 915 (1926), all of
which involved search warrant requirements as set forth in §
27 of Michigan’s “liquor law,” 1922 CL 7079(27). As we
explained in Sobczak-Obetts, supra, Knopka involved a
violation of Const 1908, art 2, § 10, not merely a statutory
violation. The Moten and Bules Courts applied, without
analysis, the Knopka exclusionary rule to purely statutory
search warrant violations. The Galnt Court, similarly to the
Knopka Court, expressly found a constitutional violation. The
Moten and Bules decisions, which conclusorily applied the
exclusionary rule without determining that there was any
constitutional violation, are distinguishable in any event
because they did not involve the search warrant statute at
issue. See Sobczak-Obetts, supra at 700 n 11. Moreover, as
we noted in Sobczak-Obetts, supra at 707, the statutory
violations in Moten, Bules, and Galnt pertained to the warrant
form; in such a case, “the resulting search may be
constitutionally defective.” (Emphasis in original.) As we
have taken pains in this opinion to make clear, we are
reviewing only the Court of Appeals application of the
exclusionary rule to the alleged violations of a statute and
a court rule, and we do not address any claims that the
warrants at issue were constitutionally insufficient.
27
required. We disagree.
MCR 3.606(A) provides:
Initiation of Proceeding. For a contempt
committed outside the immediate view and presence
of the court, on a proper showing on ex parte
motion supported by affidavits, the court shall
either
(1) order the accused person to show cause, at
a reasonable time specified in the order, why that
person should not be punished for the alleged
misconduct; or
(2) issue a bench warrant for the arrest of
the person.
Nothing in the wording of MCR 3.606(A) provides any
indication that the exclusionary rule should be applied to a
violation of its affidavit requirement.25 To engraft the
exclusionary rule—a harsh remedy designed to sanction and
deter police misconduct where it has resulted in a violation
of constitutional rights—onto the technical provisions of a
rule of court in this manner would extend the deterrent well
beyond its intended application. Indeed, the task of
scrutinizing the police papers submitted in support of a
warrant for technical compliance with the law falls squarely
with the judicial officer. In the absence of language
25
In light of the prosecutor’s concession of error, we
need not address whether the issuance of the bench warrant was
actually violative of the affidavit requirement of MCR
3.606(A).
28
evincing an intent that suppression of evidence should follow
from the violation of MCR 3.606(A), we decline to infer one.
IV. CONCLUSION
The exclusionary rule was improperly applied to the
violations of the statutory and court rule affidavit
requirements at issue in these cases. We cannot conclude, on
the basis of the plain language of MCL 780.653, that the
Legislature intended that noncompliance with its terms should
result in suppression of evidence obtained by police acting
in reasonable and good-faith reliance on a search warrant.
Likewise, MCR 3.606(A) does not provide for suppression of
evidence on the basis of noncompliance with its affidavit
requirement, and we decline to infer an intent that the
exclusionary rule should apply under these circumstances.
In Hawkins, we reverse the judgment of the Court of
Appeals and remand to that Court for further proceedings. In
Scherf, we reverse the judgment of the Court of Appeals and
remand the matter to the district court division for further
proceedings. We do not retain jurisdiction.
Robert P. Young, Jr.
Maura D. Corrigan
Clifford W. Taylor
Stephen J. Markman
29
S T A T E O F M I C H I G A N
SUPREME COURT
PEOPLE OF THE STATE OF MICHIGAN,
Plaintiff-Appellant,
v No. 120437
CHRISTOPHER LAMAR HAWKINS,
Defendant-Appellee.
____________________________________
PEOPLE OF THE STATE OF MICHIGAN,
Plaintiff-Appellant,
v No.
121698
MICHAEL BRANDON SCHERF,
Defendant-Appellee.
WEAVER, J. (concurring).
I concur in the majority’s holding that the violations
of MCL 780.653(b) and MCR 3.606(A) do not require suppression
of the evidence seized in these cases. I write separately to
note that I do not believe the reenactment rule can be relied
on in the present cases. As explained by Justice Boyle in
her dissent in People v Sloan, 450 Mich 160, 202-203; 538
NW2d 380 (1995), in which I joined,
The [Sloan] majority’s assertion of
legislative acquiescence in the decision in
Sherbine,[1] to use of the exclusionary rule to
suppress evidence obtained in alleged violation of
the statute before us is wholly mistaken. In
Sherbine, this Court’s majority interpreted the
former version of the statute as if it imposed a
more restrictive standard than the Fourth Amendment
and suppressed evidence on the basis of that
consideration. The swift reaction of the
Legislature was to amend MCL 750.653; MSA
28.1259(3), to make it clear that the Court was
incorrect in concluding that what had occurred was
a statutory violation. The Legislature had no
need to say what should not be excluded; it relied
on the Court’s word that were it clear that the
Legislature had authorized the warrant, suppression
would not be ordered.
Acting on our representation, the amended
legislation tracked the Fourth Amendment. Because
“our holding that evidence obtained in violation of
the statute must be excluded,” ante at 183
(Cavanagh, J.), was wholly derived from our narrow
reading of MCL 780.653; MSA 28.1259(3), the
legislative amendment of the statute is not an
acquiescence in, but rather a repudiation of, the
view in Sherbine that the evidence should be
excluded.
However, while I do not believe the reenactment rule
should be relied on in the present cases for the reasons
outlined by Justice Boyle, my opinion should not be construed
to mean that the rule may not be relied on in other cases
where it is appropriate.
Elizabeth A. Weaver
1
People v Sherbine, 421 Mich 502; 364 NW2d 658 (1984).
2
S T A T E O F M I C H I G A N
SUPREME COURT
PEOPLE OF THE STATE OF MICHIGAN,
Plaintiff-Appellant,
v No. 120437
CHRISTOPHER LAMAR HAWKINS,
Defendant-Appellee.
___________________________________
PEOPLE OF THE STATE OF MICHIGAN,
Plaintiff-Appellant,
v No. 121698
MICHAEL BRANDON SCHERF,
Defendant-Appellee.
___________________________________
CAVANAGH, J. (dissenting).
Today the majority discounts decades of precedent in
order to adopt its preferred policy of limiting application
of the exclusionary rule. Because contextual interpretations
of the statute and the court rule mandate use of the
exclusionary rule, and because the task of altering our
state’s policy concerning statutory remedies belongs to the
Legislature, I must respectfully dissent.
MCL 780.653
Like the majority, I agree that a contextual analysis of
MCL 780.653 will determine the appropriate remedy for its
violation. However, I depart from the majority’s analysis
insofar as it neglects material rules of statutory
interpretation.
Since its enactment in 1966, MCL 780.653 has codified
the requirement that search warrants issue only upon a
finding of probable cause, giving form to the constitutional
protection against unreasonable searches and seizures. The
provision clarifies that information in support of a warrant
must be supplied by an individual who has personal knowledge
of the facts alleged. MCL 780.653, as amended by 1988 PA 80,
provides:
The magistrate's finding of reasonable or
probable cause shall be based upon all the facts
related within the affidavit made before him or
her. The affidavit may be based upon information
supplied to the complainant by a named or unnamed
person if the affidavit contains 1 of the
following:
(a) If the person is named, affirmative
allegations from which the magistrate may conclude
that the person spoke with personal knowledge of
the information.
(b) If the person is unnamed, affirmative
allegations from which the magistrate may conclude
that the person spoke with personal knowledge of
the information and either that the unnamed person
is credible or that the information is reliable.
Similarly to the federal and state constitutional
prohibition against the issuance of a warrant without
2
probable cause, the text of this subsection provides no
specific guidance about the requisite judicial response to
its violation. Statutory construction is, therefore,
required. In re MCI, 460 Mich 396; 596 NW2d 164 (1999).
Although the consequence of an infraction is not prescribed,
1966 PA 189 does authorize a penalty for those who
intentionally exceed their authority when executing a
warrant, who exercise such authority with unnecessary
severity, or who maliciously procure a warrant. See MCL
780.657, 780.658.1 While I agree that these statutory
provisions must inform our understanding of MCL 780.653, I am
not persuaded that they mandate the result envisioned by the
majority.
As an initial matter, the penalty provisions only
pertain to a small number of violations. Most violations of
1966 PA 189 are not caused by wilful misconduct. If the
criminal provisions are deemed the exclusive remedy for any
1
MCL 780.657 provides:
Any person who in executing a search warrant,
wilfully exceeds his authority or exercises it with
unnecessary severity, shall be fined not more than
$1,000.00 or imprisoned not more than 1 year.
MCL 780.658 provides:
Any person who maliciously and without
probable cause procures a search warrant to be
issued and executed shall be fined not more than
$1,000.00 or imprisoned not more than 1 year.
3
violation of this act, its directives would have no force.
Unlike the majority, I cannot conclude that the presence of
criminal penalties for rare incidents of extreme misconduct
indicates a legislative intent to displace the exclusionary
rule. To so hold would assume the Legislature promulgated an
impotent (or ineffectual) statute.2 For this reason, I find
several other well-respected doctrines of interpretation more
compelling.
Among them is the strong presumption that a high court’s
construction of a statute should be given a heightened stare
decisis effect. As noted by the United States Supreme Court,
[the] reluctance to overturn precedents derives in
part from institutional concerns about the
relationship of the Judiciary to Congress. One
reason that we give great weight to stare decisis
in the area of statutory construction is that
"Congress is free to change this Court's
interpretation of its legislation.” Illinois Brick
Co v Illinois, 431 US 720, 736[; 97 S Ct 2061; 52
L Ed 2d 707] (1977). We have overruled our
precedents when the intervening development of the
law has "removed or weakened the conceptual
underpinnings from the prior decision, or where the
later law has rendered the decision irreconcilable
with competing legal doctrines or policies."
Patterson v McLean Credit Union, 491 US 164, 173[;
109 S Ct 2363; 105 L Ed 2d 132] (1989) (citations
omitted). Absent those changes or compelling
evidence bearing on Congress' original intent, NLRB
v Longshoremen, 473 US 61, 84[; 105 S Ct 3045; 87
L Ed 2d 47] (1985), our system demands that we
2
See People v Sobczak-Obetts, 463 Mich 687, 713-716; 625
NW2d 764 (2001) (Cavanagh, J., dissenting); People v Stevens
(After Remand), 460 Mich 626, 648-666; 597 NW2d 53 (1999)
(Cavanagh, J., dissenting).
4
adhere to our prior interpretations of statutes.
[Neal v United States, 516 US 284, 295; 116 S Ct
763; 133 L Ed 2d 709 (1996) (emphasis added).]
Because this Court shares a similar relationship with
the Michigan Legislature, I find no reason to reject this
Court’s precedent in People v Sloan, 450 Mich 160; 538 NW2d
380 (1995), or People v Sherbine, 421 Mich 502; 364 NW2d 658
(1984), which clarify that evidence obtained in violation of
MCL 780.653 must be suppressed.
In Sherbine, this Court held that the exclusionary rule
is the proper remedy for a violation of MCL 780.653. In
support, the Court cited People v Dixon, 392 Mich 691; 222
NW2d 749 (1974), People v Chartrand, 73 Mich App 645; 252
NW2d 569 (1977), and State v Russell, 293 Or 469; 650 P2d 79
(1982). Sherbine, supra at 512 and ns 18-21.
Ten years later, this Court affirmed the application of
the exclusionary rule for violations of MCL 780.653 (§ 653)
in Sloan, supra. In Sloan, this Court held that a magistrate
must base the probable-cause determination on the record
(i.e., an affidavit is necessary; sworn testimony is
insufficient), and that a violation of this statute requires
the exclusion of tainted evidence. The Court’s rationale was
based, in part, on the Legislature’s acquiescence to the
application of the exclusionary rule as expressed in
Sherbine. In 1988, the Legislature revised § 653 in response
5
to Sherbine, overruling by legislative enactment the
informant- reliability standard. In doing so, it approved
the use of the exclusionary rule to redress violations of §
653.
Though one might be tempted to dismiss the authoritative
value of Sloan on the basis of its stated reliance on the now
disfavored doctrine of legislative acquiescence, a close
examination reveals the Court utilized a related—but quite
distinct—rule of interpretation, i.e., the reenactment rule.
If a legislature reenacts a statute without modifying a high
court’s practical construction of that statute, that
construction is implicitly adopted. See Singer, 28 Statutes
and Statutory Construction (2000 rev), Contemporaneous
Construction, § 49:09, pp 103-112. The reenactment rule
differs from the legislative-acquiescence doctrine in that
the former canon provides “prima facie evidence of
legislative intent” by the adoption, without modification, of
a statutory provision that had already received judicial
interpretation. Id. at 107. As articulated by the United
States Supreme Court, a legislature “is presumed to be aware
of an administrative or judicial interpretation of a statute
and to adopt that interpretation when it [reenacts] a statute
without change . . . .” Lorillard, a Div of Loew’s Theatres,
Inc v Pons, 434 US 575, 580; 98 S Ct 866; 55 L Ed 2d 406
(1978). As I noted in Sloan, the Legislature could have
easily modified the applicability of the exclusionary rule
when enacting 1988 PA 80. By altering the text to renounce
the informant rule modified in Sherbine, while reenacting the
remaining text, the Legislature indicated its detailed
knowledge of Sherbine and approved the use of the
exclusionary rule for violations of § 653.3
Long before the Legislature incorporated the
exclusionary rule into MCL 780.653, this Court adopted a
presumption in favor of utilizing the exclusionary rule for
statutory violations. Over eighty years ago, in People v
Knopka, 220 Mich 540, 545; 190 NW 731 (1922), the Court
suppressed evidence obtained by warrant issued without
3
The majority’s attempt to diminish the value of the
reenactment doctrine is misguided. As noted above, the rule
merely provides prima facie evidence of legislative intent,
and a bill replacing male pronouns with neutral pronouns
throughout the code–as suggested in the majority opinion, ante
at 23 n 19–would not justify a strong presumption in favor of
its application because there would be no indication that the
Legislature thoughtfully familiarized itself with the
subsections modified. Application of the reenactment rule in
this case, by contrast, does shed light on the scope of the
Legislature’s familiarity with Sherbine, supra.
Further, unlike the majority, I have more faith in the
Legislature’s ability to competently execute its duties. To
assume the Legislature would not familiarize itself with the
whole of a particular case when revising one subsection of the
code in response to that very case does not, as the majority
suggests, “violate separation of powers principles.” Ante at
24 n 20. Rather, reference to the reenactment rule under such
circumstances simply acknowledges legislative competency.
7
probable cause:
It not appearing that the search warrant was
issued upon the constitutional and statutory
showing of probable cause, it must be held that the
evidence procured by it was inadmissible and should
have been suppressed and that, with such evidence
out, defendant should have been discharged.
In reaching this conclusion, the Court focused
exclusively on the statutes establishing search-warrant
requirements. Three years later, in People v Moten, 233 Mich
169; 206 NW 506 (1925), the Court again applied the
exclusionary rule to remedy a statutory violation, relying,
in part, on Knopka. See also People v Bules, 234 Mich 335;
207 NW 818 (1926) (reversing a conviction on the basis of
evidence obtained in violation of statutory warrant
requirements); People v Galnt, 235 Mich 646; 209 NW 915(1926) (discharging the defendant where evidence obtained in
violation of statute required suppression).
Although this Court has recently attempted to narrow the
import of Moten and its progeny, the distinction is
particularly inapposite here. In People v Sobczak-Obetts,
463 Mich 687; 625 NW2d 764 (2001), the majority distinguished
the Moten-Bules-Galnt trilogy because each analyzed
substantive warrant requirements, i.e., the sufficiency of a
warrant’s “form,” whereas the statute at issue in Sobczak-
Obetts concerned procedures relevant to warrant execution.
8
See also People v Hamilton, 465 Mich 526; 638 NW2d 92
(2002)(holding that an absence of statutory authority did not
warrant application of the exclusionary rule where the
statute was meant to protect the rights of autonomous local
governments); People v Stevens (After Remand), 460 Mich 626;
597 NW2d 53 (1999) (holding that failure to comply with the
knock-and- announce rule did not warrant application of the
exclusionary rule). However, this distinction between
substantive and procedural interests collapses when applied
to defendant Hawkins, who challenged the warrant issued for
his arrest on substantive grounds, maintaining the affidavit
contained neither credible nor reliable allegations. The
trial court agreed: “The affidavit clearly does not conform
with Michigan statutory authority; namely, MCL 780.653(B).”
Regrettably, the majority today conflates substantive and
procedural concerns, ignores decades of precedent, and—in
spite of evidence to the contrary—disregards the
Legislature’s unambiguous approval of the application of the
exclusionary rule for violations of MCL 780.653. See 1988 PA
80.
Until the tide began to shift with Stevens (After
Remand), the use of the exclusionary rule to remedy statutory
violations was well settled. By dismissing the import of
this Court’s precedent, including Moten, Bules, Sherbine,
9
Sloan, et al., the majority has imposed a policy-based
doctrine that requires express statements to authorize
application of the exclusionary rule. Ante at 21. This runs
afoul of the Legislature’s approval of the rule’s application
to MCL 780.653 as articulated in Sherbine. 1988 PA 80.
While I can appreciate the majority’s need to balance
important and competing interests, I take issue with its
attempt to ground the analysis in the text of MCL 780.653.
Moreover, shifting the focus to a “clear statement” policy
works a bait-and-switch on the Legislature. Not only has the
majority imposed its own policy on the Legislature, it has
displaced the controlling interpretive standard—on which our
Legislature has relied—under the guise of strict textualism.
MCR 3.606(A)
The majority concludes that the exclusionary rule is an
inappropriate remedy because the text of MCR 3.606(A) does
not specifically demand its application. Ante at 25. “When
called on to construe a court rule, this Court applies the
legal principles that govern the construction and application
of statutes. . . . Accordingly, we begin with the plain
language of the court rule.” Grievance Administrator v
Underwood, 462 Mich 188, 193-194; 612 NW2d 116 (2000).
Applied here, the doctrine clarifies our rule’s rigorous
demands. MCR 3.606(A) provides:
10
Initiation of Proceeding. For a contempt
committed outside the immediate view and presence
of the court, on a proper showing on ex parte
motion supported by affidavits, the court shall
either:
(1) order the accused person to show cause, at
a reasonable time specified in the order, why that
person should not be punished for the alleged
misconduct; or
(2) issue a bench warrant for the arrest of
the person.
As required by this rule, before contempt proceedings
may be initiated for any conduct outside of the court’s
“immediate view,” a party must provide “a proper showing on
ex parte motion supported by affidavits . . . .” A motion
alone is insufficient. An affidavit, i.e., “a signed
statement,” must be provided. Once this requirement is met,
the court must either order the accused person to prove why
punishment should not be inflicted or issue a bench warrant.
In the light of the potential peril, as well as the
substantive safeguards contained in MCR 3.606(A), I find it
particularly troublesome that the majority members suggest
such rules are mere “technical provisions.” This assertion
ignores their function as guarantors of procedural rights.
MCR 3.606(A) threatens punishment solely on the basis of
exclusive communications between an adversarial party and the
court. The procedure authorizes the exercise of police power
by judicial officers, which—contrary to the majority’s
11
implication—may not be used to detain an individual without
probable cause. As an arm of the state, our actions must
respect the polity’s civil rights, and our court rules are
drafted to ensure that the exercise of judicial authority is
not arbitrary or unlawful. To deem such rules “technical”
distorts the substance of the rules and the role of the
judiciary.
Although the majority holds otherwise, the exclusionary
rule would be particularly appropriate in this instance. As
a tool to prevent the abuse of state power, this Court
promulgated the court rule to mark the boundaries of
acceptable judicial conduct.4 If the exclusionary rule
applied, magistrates and judges would surely take care to
4
The majority claims that application of the
exclusionary rule to MCL 780.653 or MCR 3.606(A) would not
further the purpose of either because “the aim of the rule is
one of police deterrence . . . .” Ante at 12. While I agree
that we suppress evidence in an attempt to prevent police
misconduct, the exclusionary rule is also utilized to ensure
compliance with the law at an institutional level. The ease
with which we lose sight of this goal is apparent in People
v Cartwright, 454 Mich 550; 563 NW2d 208 (1997), where we
equated “good police practice” with violations of the Fourth
Amendment:
While conceding that [the officer's] entry
into the mobile home might have been good police
practice, the district court held that,
nonetheless, it was not a proper search without a
warrant. [Id. at 554.]
One wonders how it can be "good police practice" to violate
the Fourth Amendment.
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confirm that warrants were issued on a proper showing of
probable cause. Such proof is all the court rule requires.
THE EXCLUSIONARY RULE’S UTILITY
I agree that the exclusionary rule wields significant
power, but only because it is the sole efficacious method by
which to protect individuals from state misconduct, as
defined by our laws. If any other method of enforcement
worked so well, it, too, would be deemed disproportionate and
heavy- handed. Thus, our debate is not simply about which
remedy is appropriate, but how sacred we deem the right to be
free from unlawful state conduct. Whether codified in
federal or state constitutions, statutes, or court rules, the
judicial branch must enforce the laws that prescribe the
scope of state power and protect individuals from the
unreasonable exercise of that authority.
In the aftermath of September 11, 2001, as our nation
struggles to secure its boundaries while protecting our
freedoms, the role of the judiciary–charged with maintaining
the delicate balance between state authority and individual
liberty–becomes increasingly vital. Our statutes and court
rules have been drafted to protect these freedoms. Because
both the statute, MCL 780.653, and the court rule, MCR
3.606(A), would be without force but for the exclusionary
rule, and because this Court should avoid overruling sound
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precedent and imposing its policy upon the Legislature, I
must reject the majority’s analysis.
CONCLUSION
Though cloaked in a strict Textualism garb, the majority
attempts to justify its decision on the basis of its own
policy considerations. According to the majority, in the
absence of an express legislative statement indicating an
intention to invoke the exclusionary rule, the rule will not
be applied. However, a more legitimate analysis would
require an inference in favor of its application. In so
doing, it could be guaranteed that the well-settled and
authoritative interpretation of our statutes could be relied
upon, and that a statute’s purpose would be effectuated.
Moreover, without this tool, aggrieved individuals would have
no opportunity for redress. For these reasons, I would
affirm the judgment of the Court of Appeals in Hawkins.
With regard to the proper remedy for a violation of MCR
3.606(A), I would also apply the exclusionary rule. The text
of the court rule evinces an intention to impose substantive
procedural safeguards into the warrant-authorization process.
To effectuate this end, the exclusionary rule is required to
remedy violations of MCR 3.606(A). Therefore, I would affirm
the judgment of the Court of Appeals in Scherf.
Michael F. Cavanagh
Marilyn Kelly
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