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unpublished opinion per curiam of the Court of Appeals, issued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 40 6

(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.

12

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 13

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 14

15