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Michigan Supreme Court

Lansing, Michigan 48909 

C hief Justice Justices

Maura D. Corrigan	 Michael F. Cavanagh

Elizabeth A. Weaver 

Marilyn Kelly

Clifford W. Taylor

Robert P. Young, Jr. Opinion Stephen J. Markman 

FILED MAY 1, 2001
 

PEOPLE OF THE STATE OF MICHIGAN,
 

Plaintiff-Appellant,
 

v	 No. 115890
 

MICHELLE ANN SOBCZAK-OBETTS,
 

Defendant-Appellee.
 

BEFORE THE ENTIRE BENCH
 

YOUNG, J.
 

We granted leave in this case to consider whether
 

firearms found in defendant’s home, upon execution by federal
 

and state police officers of a federal search warrant, were
 

properly excluded from evidence in a state prosecution. The
 

firearms were suppressed on the ground that a copy of the
 

affidavit in support of the search warrant was not provided,
 

as required by statute, to defendant at the time the warrant
 

was executed. Because we are unable to conclude that the
 

Legislature intended the exclusionary rule to apply to the
 
 

procedural violation of Michigan’s statutory warrant
 

requirements at issue in this case, we reverse. 


I. FACTUAL AND PROCEDURAL BACKGROUND
 

Defendant and her husband, Timothy Obetts, were co-owners
 

of Pro Temp One Incorporated,1 a Michigan corporation that
 

provided skilled and semiskilled health care workers to
 

hospitals, nursing homes, and private homes. In May 1997, the
 

Michigan Accident Fund, Pro Temp One’s worker’s compensation
 

carrier, received a call on its fraud hotline indicating that
 

defendant, Obetts, and Pro Temp One had misrepresented
 

worker’s compensation employee classifications to the fund.
 

After gathering information from associates and former
 

employees of Pro Temp One, a fraud investigator from the fund
 

contacted Michigan State Police Sergeant Jack Vanderwal, who
 

initiated a criminal investigation. Vanderwal contacted the
 

Federal Bureau of Investigation after determining that
 

defendant and Obetts may have obtained bank loans by use of
 

fraud in addition to defrauding the fund of worker’s
 

compensation premiums.
 

Special Agent David Smith of the FBI interviewed two
 

former employees of Pro Temp One and a personal friend of
 

defendant.2 On the basis of the information provided by these
 

1

Pro Temp One also conducted business as First Agency


Professionals Incorporated and Agency Professionals
 

Incorporated.
 

2It appears from the record that the two former employees


had been fired by defendant, and that at least one of them was


(continued...)
 

2
 
three sources, Smith sought a federal search warrant to search
 

the private residence of defendant and Obetts. Smith’s
 

affidavit in support of the search warrant referred to the
 

three sources as “Source One,” “Source Two,” and “Source
 

Three.” On October 30, 1997, a federal magistrate issued the
 

requested search warrant.3 The magistrate ordered that the
 

affidavit in support of the warrant be sealed, apparently to
 

protect the sources.
 

On October 31, 1997, the federal search warrant was
 

executed at the residence of defendant and Obetts by one or
 

more FBI agents and one or more Michigan State Police
 

officers. While searching the basement of the home, two of
 

the FBI agents came upon a locked safe. The agents asked
 

defendant about the contents of the safe, and she replied that
 

it contained weapons. Defendant then unlocked the safe, and
 

the agents seized two handguns from it. In accordance with
 

federal procedure, when the search was completed, defendant
 

was given a copy of the search warrant and a tabulation of the
 

items seized. Notably, defendant was not provided with a copy
 

of the sealed affidavit. Defendant was subsequently charged
 

by the Kent County Prosecutor with possession of a firearm by
 

2

(...continued)


involved in litigation with defendant.
 

3The magistrate also issued a warrant to search the


business premises of Pro Temp One. This warrant was executed
 

simultaneously with the warrant to search the private


residence.
 

3
 
a person convicted of a felony. MCL 750.224f; MSA 28.421(6).4
 

At defendant’s preliminary examination, defense counsel
 

requested a copy of the affidavit in support of the search
 

warrant. The assistant prosecutor indicated that the federal
 

magistrate would be petitioned to unseal the affidavit for
 

purposes of the state proceedings. The district court judge
 

presiding over the preliminary examination stated that he
 

would bind defendant over for trial after defendant received
 

a copy of the affidavit. Within two weeks following the
 

preliminary examination, the affidavit was unsealed and
 

provided to defendant, and she was bound over for trial. 


Defendant moved to exclude the firearms from evidence on
 

various grounds, including that the police did not comply with
 

Michigan statutory requirements regarding warrant execution.
 

Following two hearings on the motion to suppress, the trial
 

court held that the motion had to be granted on the ground
 

that defendant was not provided with a copy of the affidavit
 

in support of the search warrant at the time of the search in
 

contravention of MCL 780.654; MSA 28.1259(4). The trial court
 

noted that the issuance and execution of the search warrant
 

were “perfectly legitimate” under federal law. However, the
 

court held that precedent from this Court required that
 

evidence seized in the absence of full compliance with
 

Michigan’s statutory warrant provisions be suppressed in a
 

state prosecution. Accordingly, the trial court entered an
 

4Defendant was not charged with any federal offense or


with worker’s compensation fraud as a result of the search.
 

4
 
order suppressing the firearms and dismissing the case.
 

A divided panel of the Court of Appeals affirmed. 238
 

Mich App 495, 496-504; 606 NW2d 658 (1999). In the lead
 

opinion, Judge Hoekstra noted first that, pursuant to People
 

v Paladino, 204 Mich App 505, 507-508; 516 NW2d 113 (1994), in
 

a joint operation between the state and federal governments,
 

state law governs the validity of a search warrant in state
 

court proceedings. Judge Hoekstra next opined that, although
 

two panels of the Court of Appeals had recently held that a
 

failure by law enforcement officers to comply with the
 

statutory requirement to attach a copy of the affidavit to the
 

copy of the warrant provided to the defendant does not require
 

suppression of evidence seized pursuant to the warrant,5 those
 

decisions conflicted with this Court’s holding in People v
 

Moten, 233 Mich 169; 206 NW 506 (1925).6 Judge Hoekstra
 

concluded that, because Moten had not been overturned, the
 

Court of Appeals was constrained to hold that, where a warrant
 

relies on an attached affidavit for its statement of probable
 

cause and that affidavit is not attached to the warrant as
 

statutorily required, the evidence seized pursuant to the
 

warrant is inadmissible. However, Judge Hoekstra indicated
 

5

People v Garvin, 235 Mich App 90, 99; 597 NW2d 194
 

(1999); People v Pipok (After Remand), 191 Mich App 669, 673;


479 NW2d 359 (1991).
 

6In Moten, this Court held that, where the face of the


search warrant did not recite all the material facts alleged


in the supporting affidavit as required by the then-applicable


search warrant statute, the warrant was invalid, and the


evidence seized pursuant thereto must be suppressed. Id. at
 

174. 


5
 
his disagreement with the Moten holding:
 

While this particular statutory provision


generally relates to a constitutional right, the


specific portion of the statute requiring a
 

recitation of the basis for probable cause or the


attachment of the affidavit only barely relates to


the substantive right the Legislature is seeking to


protect. The requirement is more of a ministerial


duty than a right. Consequently, were I able, I


would hold that defendant must show some prejudice


before the trial court suppresses the evidence


seized using a statutorily defective warrant. In
 

this case, for example, defendant was eventually


afforded a chance to contest the basis for the
 

warrant. I am unable to see how defendant was put


at a disadvantage by being forced to delay her


arguments until the parties obtained a copy of the


federal affidavit. I think it is especially


important that defendant be forced to show some


level of prejudice given that the warrant met all


the requirements of the federal warrant statute.


Here, I find it necessary to exclude the evidence


in question because the state warrant requirements


differ from federal warrant requirements. Neither
 

party has argued that the federal warrant
 

requirements are unconstitutional, so it seems that


I am forced to declare a search invalid because the
 

ministerial duties associated with executing a


federal warrant differ from those associated with
 

executing a state warrant, a result I hope our


Supreme Court will find equally unsettling. [238


Mich App 503-504.]
 

Judge Cavanagh concurred only in the result. 238 Mich App
 

504.
 

Judge Gage dissented, opining that the Court of Appeals
 

decisions in People v Garvin, 235 Mich App 90; 597 NW2d 194
 

(1999), and People v Pipok (After Remand), 191 Mich App 669;
 

479 NW2d 359 (1991), controlled this case, and that this case
 

was distinguishable from Moten. While the statute in effect
 

at the time Moten was decided required that the search warrant
 

itself contain a recitation of the affidavit’s statement of
 

probable cause, Judge Gage noted, the current statute allows
 

6
 
instead the attachment of the affidavit to the search warrant.
 

In light of this statutory amendment, Judge Gage stated she
 

would hold that Moten was not controlling, and that
 

suppression of the firearms in this case was not required
 

because defendant had failed to demonstrate that she was
 

prejudiced as a result of the “technical, nonconstitutional”
 

statutory violation. 238 Mich App 504-508.
 

We granted the prosecution’s application for leave to
 

appeal,7 and we now reverse. 


II. STANDARD OF REVIEW
 

This Court reviews a trial court's ruling regarding a
 

motion to suppress for clear error. People v Stevens (After
 

Remand), 460 Mich 626, 631; 597 NW2d 53 (2000); People v
 

Burrell, 417 Mich 439, 448; 339 NW2d 403 (1983). However,
 

questions of law relevant to the suppression issue are
 

reviewed de novo. Stevens, supra at 631; see also People v
 

Sierb, 456 Mich 519, 522; 581 NW2d 219 (1998). 


Where violation of a state statute is involved,
 

“‘[w]hether suppression is appropriate is a question of
 

statutory interpretation and thus one of legislative intent.’”
 

Stevens, supra at 644, quoting People v Wood, 450 Mich 399,
 

408; 538 NW2d 351 (1995) (BOYLE, J., concurring). “‘Because
 

our judicial role precludes imposing different policy choices
 

than those selected by the Legislature, our obligation is, by
 

examining the statutory language, to discern the legislative
 

7462 Mich 912 (2000).
 

7
 
 

intent that may reasonably be inferred from the words
 

expressed in the statute.’” People v McIntire, 461 Mich 147,
 

152; 599 NW2d 102 (1999), quoting 232 Mich App 119 (YOUNG,
 

P.J., concurring in part and dissenting in part). “‘When a
 

statute is clear and unambiguous, judicial construction or
 

interpretation is unnecessary and therefore, precluded.’”
 

Stevens, supra at 644, quoting Lorencz v Ford Motor Co, 439
 

Mich 370, 376; 483 NW2d 844 (1992).
 

III. ANALYSIS
 

A. STATUTORY WARRANT REQUIREMENTS
 

In support of her motion to suppress the weapons,
 

defendant contended that MCL 780.655; MSA 28.1259(5)–by
 

reference to MCL 780.654; MSA 28.1259(4)–required the officers
 

executing the federal search warrant to provide her with a
 

copy of the affidavit in support of the warrant. Because the
 

officers provided only the warrant itself and not the
 

affidavit, defendant argued that the search was defective and
 

the handguns had to be suppressed. The trial court agreed.
 

MCL 780.654; MSA 28.1259(4) provides as follows:
 

A search warrant shall be directed to the
 

sheriff or any peace officer, commanding such


officer to search the house, building or other
 

location or place, where any property or other


thing for which he is required to search is


believed to be concealed. Each warrant shall
 

designate and describe the house or building or


other location or place to be searched and the


property or thing to be seized. The warrant shall
 

also state the grounds or the probable or
 

8
 
reasonable cause for its issuance, or in lieu


thereof, a copy of the affidavit may be attached


thereto. [Emphasis supplied.]
 

The requirement that the warrant be left at the scene or
 

otherwise given to the premises owner is found in MCL 780.655;
 

MSA 28.1259(5), which provides as follows in pertinent part:
 

When an officer in the execution of a search
 

warrant finds any property or seizes any of the


other things for which a search warrant is allowed


by this act, the officer, in the presence of the


person from whose possession or premises the
 

property or thing was taken, if present, or in the


presence of at least 1 other person, shall make a


complete and accurate tabulation of the property


and things so seized. The officer taking property


or other things under the warrant shall forthwith


give to the person from whom or from whose premises


the property was taken a copy of the warrant and


shall give to the person a copy of the tabulation


upon completion, or shall leave a copy of the


warrant and tabulation at the place from which the


property or thing was taken. [Emphasis supplied.][8]
 

B. APPLICATION OF THE EXCLUSIONARY RULE
 

1. INTRODUCTION
 

8We note that § 5 does not explicitly require that the


affidavit in support of the search warrant, if attached to the


warrant pursuant to § 4, be provided to the premises owner at


the time of the seizure. However, the prosecution concedes


that § 5 was violated by the officers’ failure to provide


defendant with a copy of the search warrant affidavit at the


time the handguns were seized. This is consistent with the
 

holdings of the Court of Appeals in People v Chapin, 244 Mich
 

App 196; ___ NW2d ___ (2000), and Garvin, supra (where the


affidavit is attached to the warrant pursuant to § 4, the


affidavit becomes part of the “warrant” that must be provided


or left at the premises pursuant to § 5); but see Chapin,
 supra at 208 (HOOD, J., dissenting) (the plain language of §


5 requires only that the search warrant itself be provided or


left at the premises). We agree with Chapin and Garvin and
 

hold that, where an affidavit is attached to the warrant as


permitted by § 4 in lieu of a statement of probable cause in


the warrant itself, the affidavit is part of the “warrant”


referred to in § 5. 


9
 
The prosecution argues that, where the only defect in the
 

search and seizure was a technical violation of Michigan’s
 

statutory warrant requirements, and where there has been no
 

violation of defendant’s constitutional rights under the
 

Fourth Amendment, the exclusionary rule should not be
 

applied.9 Defendant–who makes no argument that her
 

constitutional rights were violated by the officers’
 

actions–contends that suppression of evidence is the proper
 

remedy for a statutory violation of this kind, and that
 

suppression is indeed required pursuant to this Court’s
 

holding in Moten and its progeny. Because we conclude that
 

Moten is distinguishable from the case at bar, and because we
 

do not discern any legislative intent that the exclusionary
 

rule be applied to a violation of MCL 780.655; MSA 28.1259(5),
 

we hold that suppression of the evidence in this case was not
 

appropriate. 


2. PEOPLE V MOTEN


 In a trilogy of prohibition-era cases, this Court
 

suppressed evidence obtained pursuant to search warrants that
 

were violative of the search warrant requirements set forth in
 

§ 27 of Michigan’s “liquor law,” 1922 CL 7079(27), which
 

9There is no federal counterpart to the Michigan


statutory requirement that the search warrant state on its


face the grounds or cause for its issuance or have the


affidavit attached. MCL 780.654; MSA 28.1259(4). See 18 USC
 

3101 et seq.; FR Crim P 41(c). Defendant did not, and does


not now, claim any deprivation of constitutional rights with


respect to the procedure utilized by the federal magistrate in


issuing the search warrant or in sealing the affidavit, or by


the federal and state officers in executing the warrant. 


10
 
provided in relevant part as follows:
 

No warrant for search shall be issued until
 

there has been filed with the magistrate an
 

affidavit describing the house or place to be


searched, the things to be searched for, and


alleging substantially the offense in relation


thereto, and that affiant believes, and has good


cause to believe that such liquor is there
 

concealed: Provided, however, That any description


that will enable the officer to find the house or
 

place to be searched shall be deemed sufficient.


The warrant for search shall be directed to the
 

proper officer and shall recite all of the material
 

facts alleged in the affidavit, and describe the


things to be searched for and the place to be
 

searched. A warrant for search and seizure
 

substantially in the following form shall be
 

sufficient:
 

“. . . Whereas there has been filed with the
 

undersigned an affidavit (here set out the material
 

facts alleged in the affidavit) . . . .” [Emphasis


supplied.]
 

In Moten, this Court held that § 27 of the liquor law had been
 

violated where the search warrant did not contain a recitation
 

of the facts alleged in the affidavit. As a result of this
 

statutory violation, the Moten Court held, 


[t]he warrant is invalid, and the evidence procured


thereunder inadmissible. “With such evidence out,


defendant should have been discharged.” People v


Knopka, 220 Mich 540 [190 NW 731 (1922)].[10]
 

10The search warrant at issue in Knopka was held to be
 

violative of both § 27 of the liquor law and the Michigan


Constitution’s probable cause requirement, Const 1908, art 2,


§ 10. Id. at 545. The Knopka Court concluded: “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. See People v De


La Mater, [213 Mich 167; 182 NW 57 (1921)]; People v Mayhew,
 [214 Mich 153; 182 NW 676 (1921)]; People v Halveksz, [215


Mich 136; 183 NW 752 (1921)].” Knopka, supra at 545. The
 

cases cited by the Knopka Court as authority for suppressing


(continued...)
 

11
 
The conviction must therefore be set aside and
 

defendant discharged. [Moten, supra at 174.] 


In People v Bules, 234 Mich 335; 207 NW 818 (1926), the
 

search warrant suffered from the same deficiency as that in
 

Moten: It failed to recite the facts set forth in the
 

supporting affidavit as required by § 27 of the liquor law.
 

Because the statute had been violated, this Court held, “[the]
 

warrant was void on its face” and the evidence had to be
 

suppressed:
 

The mandate of the statute is clear, that the


material facts alleged in the affidavit for the


warrant shall be recited in the warrant, and the


legislature even took the pains to set out a form,


in which it directed the user to (“Here set out the


material facts alleged in the affidavit”). . . .


The law cannot be made plainer, and is but
 

expressive of long time precedent established to


prevent abuse. We deplore the carelessness
 

evidenced here and so inexcusable if the statute
 

was read, but we are bound to correct here such a


palpable blunder. The evidence seized on the socalled search warrant should have been suppressed.


[Bules, supra at 336.] 


Likewise, in People v Galnt, 235 Mich 646; 209 NW 915
 

(1926), the search warrant failed to recite the material facts
 

alleged in the affidavit, contrary to § 27 of the liquor law.
 

Accordingly, this Court held, the warrant was “void,” and “the
 

search [was] unlawful, a violation of [the defendant’s]
 

constitutional right [Const 1908, art 2, § 10] that his house
 

10(...continued)


the evidence and dismissing the case (De La Mater, Mayhew, and


Halveksz) concern searches that were held to be
 

constitutionally deficient. Moten appears to be the first


case of this Court requiring suppression of evidence as a


remedy for a purely statutory search warrant defect, and it


does not appear that the Court considered this distinction in


reaching its decision. 


12
 
shall be secure from unreasonable searches and seizures.” Id.
 

at 648 (emphasis supplied). Thus, what had been characterized
 

in Moten and Bules as a purely statutory imperfection was in
 

Galnt characterized as being of constitutional magnitude. 


3. COURT OF APPEALS CASES APPLYING MOTEN
 

In recent years, the Court of Appeals has addressed the
 

Moten-Bules-Galnt trilogy in the context of Michigan’s modern
 

search warrant statutes.11 In Pipok, supra, a federal search
 

warrant was executed by state and federal officers. The
 

search warrant was issued pursuant to federal law, and it did
 

not comply with Michigan’s requirement set forth in MCL
 

780.654; MSA 28.1259(4) that a search warrant provide on its
 

face or in an attached affidavit the grounds on which the
 

warrant was issued. Relying on the Moten trilogy, the
 

defendants contended that the noncompliance with § 4 rendered
 

the search warrant invalid, and that the evidence seized
 

pursuant to the warrant must be suppressed. The panel,
 

finding Moten to be distinguishable, held that the statutory
 

violation12 did not require suppression of the evidence:
 

11We note that the warrant statute at issue in Moten,
 Bules, and Galnt, § 27 of the liquor law, was not a precursor


of Michigan’s current search warrant statutes, contrary to the


assumptions of some members of the various Court of Appeals


panels that have addressed Moten’s application to the current
 

statutes. Rather, general search warrant statutes existed


contemporaneously with the warrant provision contained in the


liquor law. See, e.g., 1915 CL 15879-15883. 1915 CL 15881 is
 

a precursor of the present-day MCL 780.654; MSA 28.1259(4).
 

12The Pipok panel stated, in dicta, that “when evidence


(continued...)
 

13
 
 

The Moten Court . . . found the recital [of


material facts alleged in the affidavit] to be an


“essential requirement” of a valid warrant and held


that evidence seized pursuant to a warrant lacking


such a recital must be suppressed.
 

Since the court’s decision in Moten, statutory


law in this state has changed to permit a
 

supporting affidavit to be attached to the warrant


in place of stating the material facts, or grounds


for issuance, on the warrant itself. Again, the


provision is designed to guarantee that a record of


probable cause is established. The Legislature has


apparently recognized that the affidavit alone is


sufficient to establish a record of probable cause
 

12(...continued)


challenged in a state prosecution is obtained in a search


involving the joint activity of state and federal officers,


the search is scrutinized under state standards.” Id. at 671.
 

This proposition was reiterated by a different Court of


Appeals panel, again in dicta, in Paladino, supra at 507-508
 

(noting that “[t]his ruling was based on the need to preserve


state court integrity and to govern the conduct of state


officers”). The prosecution in the present case urges us to


abrogate the Court of Appeals “joint activity” rule and to


hold that Michigan’s statutory warrant requirements do not


apply to a federal search warrant or to its execution by


federal and state officers. 


Because we hold that the statutory violation at issue in


this case does not require suppression of evidence in any


event, we need not address the propriety of the “joint


activity” rule enunciated by the Court of Appeals.


Nevertheless, we take this opportunity to note our disapproval


of the dicta in Pipok and Paladino suggesting that state
 

warrant requirements apply to joint federal and state
 

execution of state warrants. Michigan statutory provisions


governing issuance and execution of search warrants, on their


face, and as a matter of the legislative power of this state,


address only search warrants (which are judicial orders)


issued by judicial officers of Michigan. See United States
 

Const, art VI, cl 2 (“The Constitution, and the Laws of the


United States which shall be made in Pursuance thereof . . .
 

shall be the supreme Law of the Land; and the Judges in every


State shall be bound thereby, any Thing in the Constitution or


Laws of any State to the Contrary notwithstanding”); Const


1963, art 4, § 1 (“The legislative power of the State of
 

Michigan is vested in a senate and a house of
 

representatives”) (emphasis added). The United States of
 

America is a sovereign entity; it does not require officers to


provide an affidavit underlying a federal warrant following


execution.
 

14
 
and that it is not necessary to transcribe the


material facts from the affidavit onto the warrant.
 

[Id. at 672-673.]
 

The Pipok panel noted that the federal magistrate’s
 

determination of probable cause was based on an affidavit,
 

that the defendants did not articulate any prejudice
 

resulting from the noncompliance with § 4, and that the
 

defendants were eventually provided with copies of the
 

affidavit and given the opportunity to challenge the probable
 

cause determination. The panel thus concluded that “the
 

failure of the warrant to state the grounds for issuance or
 

to have the supporting affidavit attached did not abrogate
 

the purpose of the statute and that the error was one of
 

procedure not requiring suppression of the evidence.” Id. at
 

673. 


In Garvin, supra, the Court of Appeals again addressed
 

a defendant’s contention that Moten required suppression of
 

evidence, this time for a violation of MCL 780.655; MSA
 

28.1259(5). Officers from the Pontiac Police Department
 

executed a search warrant at defendant Garvin’s residence,
 

seizing evidence implicating Garvin in a number of crimes.
 

After completing the search of the house, the officers either
 

provided a copy of the search warrant to Garvin or left it at
 

his residence; however, the officers detached from the copy
 

of the warrant provided to Garvin the affidavit in support of
 

the warrant. The trial court granted Garvin’s motion to
 

suppress the seized evidence on the basis that § 5 had been
 

violated by the officers’ failure to provide Garvin with a
 

15
 
 

copy of the affidavit. 


The Court of Appeals reversed, holding that the
 

officers’ failure to provide Garvin with a copy of the
 

affidavit did not require suppression of evidence seized
 

pursuant to the warrant. The panel noted that in Pipok,
 

supra, the Court had refused to suppress evidence on the
 

basis that § 4 had been violated, where there were no
 

allegations that the search warrant was constitutionally
 

defective or that the defendants had suffered any prejudice.
 

Likewise, the Garvin panel concluded, suppression was not
 

required as a remedy for a violation of § 5:
 

[I]t follows [from Pipok] that the failure of


the police to provide or leave a copy of the


affidavit as part of the copy of the warrant does


not provide a basis for suppression of evidence,


because Garvin ultimately has the opportunity to


challenge probable cause supporting the warrant and


because the requirement is merely procedural.
 

* * *
 

We strongly agree with the pertinent holding


by the Pipok Court. It is one thing, under certain


circumstances, to order the drastic remedy of


suppressing highly relevant evidence to enforce the


fundamental constitutional guarantees against


unreasonable searches and seizures of US Const, Am


IV and Const 1963, art 1, § 11. It is quite


another to extend the exclusionary rule to a


technical deficiency, such as failing to provide or


leave a copy of an affidavit in connection with the


exercise of a reasonable search in which the law
 

enforcement officers executing the search provide


a copy of the search warrant itself, thereby


providing notice that the search has been
 

judicially authorized. [Id. at 99-101.]
 

More recently, a panel of the Court of Appeals has
 

retreated from the holding of Garvin that suppression is not
 

required for a violation of § 5. In People v Chapin, 244
 

16
 
Mich App 196; ___ NW2d ___ (2000), a search warrant was
 

executed at the defendant’s home. Upon completion of the
 

search, a copy of the search warrant was left at the home.
 

A copy of the affidavit was available; however, it was not
 

left at the home, because the prosecutor had specifically
 

requested that the officers not leave a copy of the
 

affidavit. The defendant moved for suppression of marijuana
 

and other incriminating evidence seized, arguing that § 5 had
 

been violated and that suppression was required pursuant to
 

Moten.
 

The Chapin majority, after determining that the
 

statutory requirements of § 4 were “incorporated” within the
 

provisions of § 5,13 held that the violation of § 5 required
 

suppression of the seized evidence. The majority opined
 

that, although § 4 had been “amend[ed]” since the time Moten
 

was decided,14
 

[u]nder both versions of the statute, the
 

requirement exists that the warrant, whether in the


body of the warrant itself or by affidavit attached
 

13The defendant in Chapin argued that, although § 5


requires only that “a copy of the warrant” be provided to the


person from whom or from whose premises property was taken,


the “warrant” referred to in § 5 must include the affidavit if


one is attached as permitted by § 4 (in lieu of a statement of


probable cause in the warrant itself). The Chapin majority


agreed, citing Garvin, supra at 98-99. Judge Hood,


dissenting, disagreed and would have held that, “[p]ursuant to


the plain language of this statute, the officer is only


required to leave a copy of the search warrant itself . . . .”
 

Chapin, supra at 208 (emphasis supplied).
 

14We note again that the liquor law search warrant


provision at issue in Moten and its prohibition-era progeny
 

was not a predecessor of MCL 780.654; MSA 28.1259(4). See n
 

12. 


17
 
thereto, must state the grounds or the probable


cause for its issuance.
 

* * *
 

Thus, despite recodification of the statute,


[the holding in Garvin that, where a supporting


affidavit is used in lieu of a statement of
 

probable cause in the warrant pursuant to § 4, a


copy of the affidavit becomes part of the “copy of


the warrant” that must be provided to the defendant


pursuant to § 5] is consistent with the Supreme


Court’s pronouncement in Moten, Bules, and Galnt
 

that the material facts in support of the issuance


of a search warrant must be included with the
 

search warrant. [Id. at 201-203.]
 

Moving on to the question of the proper remedy for a
 

violation of § 5, the Chapin majority declined to follow the
 

holdings of Garvin and Pipok that suppression was not
 

required:
 

[I]n Garvin the Court held that the failure of
 

law enforcement officers to comply with the
 

statutory requirement to attach a copy of the


affidavit to the copy of the warrant provided or


left does not require suppression of the evidence


seized pursuant to the warrant because the
 

requirement is merely procedural. See also [Pipok,
 supra]. However, Garvin’s holding is inconsistent


with the Supreme Court’s pronouncement in Moten,


Galnt, and Bules that violation of the statutory


requirement that the search warrant state the


grounds or probable cause for issuance of the


search warrant renders the warrant invalid and
 

requires suppression of the evidence. Because
 

Moten, Galnt, and Bules remain good law, we must


follow their precedent. Thus, because officials


left the warrant at defendant’s home without the
 

supporting affidavit, and the warrant itself did


not state the probable cause grounds, the circuit


court properly suppressed the evidence. See [238
 

Mich App 498]. [Chapin, supra at 203-204.] 


Judge Hood dissented, opining that Moten was
 

distinguishable because it addressed a statutory violation
 

different from the violation at issue in Chapin: 


18
 
Review of the statutes at issue reveals that
 

Moten, supra, does not govern this case. The issue
 

in Moten involved the statutory requirements that


must be contained within a search warrant, now


codified at MCL 780.654; MSA 28.1259(4). The
 

defendant in Moten never took issue with the
 

delivery of the search warrant that was left at the


home, but rather, took issue with the contents of


the search warrant itself. 


* * *
 

In the present case, MCL 780.654; MSA
 

28.1259(4) provides that the search warrant must


contain the basis of probable cause within the


document or in lieu thereof, a copy of the


affidavit may be attached thereto. Defendant does
 

not dispute that at one time, the two documents,


the search warrant and the supporting affidavit,


were both available. . . . [Rather,] [d]efendant’s


controlling, some perceived conflict with prior


challenge . . . involves 

28.1259(5). . . . 

MCL 780.655; MSA 

* * * 

Once it is accepted that Moten is not 

decisions of this Court either does not exist or is
 

distinguishable. First, it should be noted that


[238 Mich App 495] is without precedential value


because a majority of the judges concurred in the


result only and did not concur in the rationale


underlying the decision. . . . Additionally, the


decision of [Pipok, supra] is not controlling


because it involved the statutory interpretation of


MCL 780.654; MSA 28.1259(4), not the statute at


issue here. Instead, this case is factually in
 

accordance with the decision of [Garvin, supra].
 

Both cases address the issue of an alleged


technical failure to comply with MCL 780.655; [MSA


28.1259(5)], and the Garvin Court concluded that
 

that failure did not require suppression of the


evidence. The Garvin decision was criticized and
 

deemed wrongly decided for its failure to address


the Moten decision. [238 Mich App] 502-503.
 

However, as indicated, when the actual language of


the statute addressed in Moten is traced, one


concludes that the statute was recodified at MCL
 

780.654; MSA 28.1259(4). The issue before this
 

panel and the Garvin Court [involves] MCL 780.655;


MSA 28.1259(5), a statute not addressed by [the]


Moten Court. Accordingly, the precedent of Moten
 

would not be disregarded in reaching this holding.
 

19
 
 

[Id. at 206-210.] 


4. APPLICATION OF MOTEN TO A VIOLATION OF § 5
 

We agree with much of Judge Hood’s dissenting analysis
 

in Chapin with respect to the precedential value of Moten and
 

its progeny in the context of a violation of MCL 780.655; MSA
 

28.1259(5). Moten, Bules, and Galnt did not address the
 

statutory violation present in Chapin and in this case.
 

Accordingly, these decisions are simply not controlling here.
 

We first note that defendant in the case at bar makes no
 

claim that § 4 was violated,15 that the search warrant itself
 

was otherwise invalid, or that her constitutional rights were
 

in any way violated by the issuance or execution of the
 

search warrant. Rather, her claim is that § 5 was violated
 

because the officers failed to provide her with a copy of the
 

affidavit at the time of the execution of the warrant. It is
 

on this basis that defendant contends that the seized
 

firearms must be suppressed.
 

The statutory violation at issue in Moten, Bules, and
 

Galnt is not comparable to the statutory violation at issue
 

in the case at bar. It is possible to analogize 1922 CL
 

7079(27)–the liquor law search warrant provision at issue in
 

Moten–to § 4 of the current statutory warrant scheme, because
 

15Defendant has never claimed that the warrant itself was
 

invalid; nor has she ever claimed that the original search


warrant issued by the federal magistrate did not include an


affixed copy of the affidavit. Indeed, we note that the face
 

of the search warrant states: “See attached
 

affidavit–continued on the attached sheet and made a part
 

hereof.” [Emphasis supplied.]
 

20
 
 

both those statutes pertain to the warrant form. Where the
 

form of the warrant is deficient, the resulting search may be
 

constitutionally defective.16 In contrast, § 5 of Michigan’s
 

present statutory warrant scheme sets forth procedural
 

requirements that are to be followed by the police during and
 

after the execution of an otherwise facially valid search
 

warrant. A violation of § 5, therefore, does not render the
 

warrant itself invalid, or the search unreasonable. 


We leave for another day the question of the proper
 

remedy for a violation of the requirement of § 4 that the
 

warrant either recite the probable cause grounds or, in lieu
 

of such a recitation, incorporate the affidavit by
 

attachment. Because Moten did not address a violation of a
 

statutory prescription regarding procedural measures to be
 

taken by the police in their execution of an otherwise valid
 

search warrant, we find it to be inapposite to this case. 


5. LEGISLATIVE INTENT
 

Having determined that Moten provides no guidance with
 

respect to the issue before us–whether a technical violation
 

of MCL 780.655; MSA 28.1259(5) requires application of the
 

16US Const, Am IV (“no Warrants shall issue, but upon


probable cause, . . . particularly describing the place to be


searched, and the persons or things to be seized”); Const


1963, art 1, § 11 (“[n]o warrant to search any place or to


seize any person or things shall issue without describing


them”). See, e.g., Galnt, supra (where search warrant did not


recite the material facts alleged in the affidavit as required


by § 27 of the liquor law, the warrant was “void” and,


therefore, the search violated the defendant’s constitutional
 

right under Const 1908, art 2, § 10, to be free from


unreasonable searches and seizures). 


21
 
 

exclusionary rule–we turn to the statute itself.
 

We have recently had occasion to consider whether
 

evidence obtained during the execution of a search warrant
 

must be excluded where the executing officers violated our
 

“knock and announce” statute, MCL 780.656; MSA 28.1259(6).17
 

In Stevens, supra, we held that the Court of Appeals erred in
 

holding that the exclusionary rule applied to a violation of
 

§ 6, where the search was of proper scope under a valid
 

warrant.18 We first noted that whether suppression is
 

required for a violation of a statute is a question of
 

statutory interpretation, and that our focus must be on
 

legislative intent. Id. at 644. Finding that nothing in the
 

language of the “knock and announce” statute indicated that
 

the Legislature intended that the exclusionary rule be
 

applied to a violation of the statute, we “decline[d] to
 

infer such a legislative intent,” because “[t]o do otherwise
 

would be an exercise of will rather than judgment.” Id. at
 

645 (emphasis in original).
 

17
 

The officer to whom a warrant is directed, or


any person assisting him, may break any outer or


inner door or window of a house or building, or


anything therein, in order to execute the warrant,


if, after notice of his authority and purpose, he


is refused admittance, or when necessary to
 

liberate himself or any person assisting him in


execution of the warrant. 


18We also held in Stevens that the Fourth Amendment
 

violation in that case did not require application of the


exclusionary rule, primarily because of the lack of any causal


connection between the constitutional knock and announce
 

violation and the evidence seized. Stevens, supra at 635-643.
 

As stated, defendant in this case makes no claim that her


Fourth Amendment rights were violated.
 

22
 
 

In holding that suppression was not an appropriate
 

remedy for the violation of “knock and announce” principles
 

in Stevens, we noted that the exclusionary rule “is not meant
 

to put the prosecution in a worse position than if the police
 

officers’ improper conduct had not occurred, but, rather, it
 

is to prevent the prosecutor from being in a better position
 

because of that conduct.” Id. at 640-641, citing Nix v
 

Williams, 467 US 431, 443; 104 S Ct 2501; 81 L Ed 2d 377
 

(1984). We additionally found persuasive the fact that the
 

“knock and announce” requirement “does not control the
 

execution of a valid search warrant; rather, it only delays
 

entry.” Stevens, supra at 645. Where it was the authority
 

of the valid search warrant that led to the discovery of the
 

evidence, not the means of entry, there was simply no causal
 

relationship between the violation and the seizing of the
 

evidence. Because the discovery of the evidence was
 

independent of the officers’ failure to comply with the
 

statutory “knock and announce” requirement, we found that
 

suppression of the evidence was not warranted. Id. at 646­

647. 


As in Stevens, we now hold that suppression of the
 

evidence seized in this case is not an appropriate remedy for
 

the statutory violation at issue. Nothing in the language of
 

§ 5 provides any basis to infer that it was the legislators’
 

intent that the drastic remedy of exclusion be applied to a
 

violation of the statute. Furthermore, the exclusionary rule
 

“‘forbids the use of direct and indirect evidence acquired
 

23
 
from governmental misconduct, such as evidence from an
 

illegal police search.’” Stevens, supra at 636, quoting
 

People v LoCicero (After Remand), 453 Mich 496, 508-509; 556
 

NW2d 498 (1996) (citations omitted; emphasis supplied). The
 

requirements of § 5 are ministerial in nature, and do not in
 

any way lead to the acquisition of evidence; rather, these
 

requirements come into play only after evidence has been
 

seized pursuant to a valid search warrant. Because the
 

exclusionary rule pertains to evidence that has been
 

illegally seized, it would not be reasonable to conclude that
 

the Legislature intended to apply the rule to a violation of
 

the postseizure, administrative requirements of § 5. Just as
 

there was no causal relationship between the violation of the
 

“knock and announce” statute and the seizing of the evidence
 

at issue in Stevens, there is in the instant case no causal
 

relationship between the officers’ failure to provide
 

defendant with a copy of the search warrant affidavit and the
 

seizure of the firearms. 


We note further that the deterrent purpose19 of the
 

exclusionary rule would not be served by ordering suppression
 

of the evidence in this case. The officers were executing a
 

valid federal warrant that complied with all federal
 

requirements. The federal magistrate had ordered that the
 

19“‘The core rationale consistently advanced . . . for


extending the exclusionary rule to evidence that is the fruit


of unlawful police conduct has been that this admittedly


drastic and socially costly course is needed to deter police


from violations of constitutional and statutory protections.’”


Stevens, supra at 637, quoting Nix, supra at 442-443.
 

24
 
affidavit be sealed. Defendant does not argue that this
 

procedure violated her constitutional rights or that it ran
 

afoul of any federal requirements concerning the validity of
 

search warrants. Defendant’s sole contention is that the
 

failure to leave a copy of the affidavit at her residence or
 

to otherwise “forthwith” provide her with the affidavit
 

violated MCL 780.655; MSA 28.1259(5). The officers cannot be
 

faulted for their inability to provide a copy of the
 

affidavit, since the affidavit was under seal by direction of
 

a federal magistrate. Because there was no police
 

“misconduct” in this case, the deterrent purpose of the
 

exclusionary rule would not be served by applying it under
 

these circumstances. Moreover, because the police would have
 

recovered the weapons irrespective of the alleged statutory
 

violation, suppression of the evidence in this case would
 

“undermine the adversary system by putting the prosecution in
 

a worse position” than if the violation of § 5 had not
 

occurred. Stevens, supra at 637, citing Nix, supra at 447.
 

Application of the exclusionary rule would be
 

particularly inappropriate in the case of a valid federal
 

warrant. Were we to use the exclusionary rule in this case
 

to deter officers from "violating" a state warrant execution
 

provision, we would effectively encourage officers to violate
 

a federal magistrate's order sealing an affidavit. While our
 

statutes do not govern federal warrants, Michigan may, of
 

course, prescribe its own rules for the admission or
 

exclusion of evidence. Our Legislature has not, however,
 

25
 
 

expressed an intent to require suppression even when officers
 

executing a Michigan search warrant violate § 5; it certainly
 

has not mandated suppression when evidence was obtained
 

through a valid federal warrant.
 

V. CONCLUSION
 

The police officers in this case were acting under a
 

valid search warrant and within the scope of that warrant.
 

Defendant’s constitutional rights were in no way infringed.
 

There is no causal connection between the seizure of the
 

firearms and the officers’ failure, after the execution of
 

the warrant, to provide defendant with a copy of the search
 

warrant affidavit. 


We are unable to discern any legislative intent that a
 

violation of the technical requirements of MCL 780.655; MSA
 

28.1259(5) result in the suppression of evidence obtained
 

pursuant to a valid search warrant. Moreover, such a result
 

would be particularly unwarranted in the instant case, where
 

there has been no police misconduct and where, therefore, the
 

deterrent purpose of the exclusionary rule would not be
 

served. We therefore hold that the trial court and the Court
 

of Appeals erred in applying the exclusionary rule as a
 

remedy for this statutory violation. The evidence should not
 

have been suppressed, and the case should not have been
 

dismissed, for a violation of the procedural requirements of
 

§ 5. Accordingly, we reverse and remand this matter to the
 

trial court for further proceedings consistent with this
 

26
 
opinion.20
 

CORRIGAN, C.J., and TAYLOR, and MARKMAN, JJ., concurred with
 

YOUNG, J.
 

20We note that, in addition to the statutory violation,


defendant raised before the trial court several other grounds


in support of her motion to suppress evidence. On remand, the


trial court shall address any grounds raised in support of the


motion to suppress that were not disposed of in the trial


court’s oral opinion of September 9, 1998. 


27
 
 

 

____________________________________ 

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. 115980
 

MICHELLE ANN SOBCZAK-OBETTS,
 

Defendant-Appellee.
 

WEAVER, J. (concurring).
 

I concur in the result, but write separately because I
 

believe that the first step in resolving this matter is
 

determining whether the state warrant requirements should be
 

applied to a federal search warrant executed during a search
 

conducted jointly by federal and state authorities. In my
 

opinion, the state warrant requirements should not apply in
 

this situation, and People v Pipok (After Remand), 191 Mich
 

App 669, 671; 479 NW2d 359 (1991), was wrongly decided.1
 

Because the state warrant requirements should not apply to
 

these facts, the firearms found in defendant’s home should
 

not have been suppressed.
 

Because I would decline to apply the state warrant
 

requirements to these facts, I express no opinion concerning
 

1 People v Paladino, 204 Mich App 505; 516 NW2d 113


(1994), a case in which I participated at the Court of


Appeals, cited the Pipok holding in its analysis. Pipok was
 

binding authority on the Court of Appeals when Paladino was
 

decided. Thus, Paladino did not address whether Pipok was
 

correctly decided. 

whether the exclusionary rule would apply to a procedural
 

violation of the state requirements.
 

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. 115890
 

MICHELLE ANN SOBCZAK-OBETTS,
 

Defendant-Appellee.
 

CAVANAGH, J. (dissenting).
 

Because I disagree with the majority’s decision to admit
 

the challenged evidence, I respectfully dissent. I would
 

affirm the judgment of the Court of Appeals, and, further, I
 

would not disavow the Court of Appeals decision in People v
 

Chapin, 244 Mich App 196; _ NW2d _ (2001).
 

First, I cannot agree that this Court’s decision in
 

People v Moten, 233 Mich 169; 206 NW 506 (1925), is not
 

applicable to this case. There, this Court had to decide
 

whether evidence gathered under a warrant that did not recite
 

the basis for its issuance, as required by statute, had to be
 

excluded. Id. at 174. Analyzing this question, the Court
 

quoted approvingly from United States v Kaplan, 286 F 963,
 

968 (SD Ga, 1923), which stated that such warrant
 

requirements ensure “that the accused may promptly know what
 
is the accusation against him, upon what it is based . . . .”
 

The Moten Court concluded that the warrant was not complete
 

and in violation of the statute. Thus, the Court concluded
 

that the accused did not “promptly know” the accusation
 

against him or its basis, and it excluded the evidence
 

gathered under the warrant. See Moten, supra at 173-174.
 

The majority distinguishes Moten, concluding that Moten may
 

require exclusion of evidence gathered under a warrant that
 

does not have the proper statutory form, but does not require
 

exclusion when the asserted statutory shortcoming deals only
 

with the procedure of executing the warrant. It
 

characterizes defendant’s complaint as only procedural, and
 

not within Moten. See slip op at 26-27.
 

However, the offered distinction does not account for
 

the Moten Court’s reasoning. There, the warrant did not
 

recite the basis for its issuance, depriving the defendant of
 

notice of the reasons for the search, and this Court excluded
 

the evidence. In this case, even though the warrant may at
 

some prior time have had an affidavit attached to it, see
 

slip op at 25, n 15, when it was delivered to defendant, it
 

did not. In fact, defendant was not informed of the
 

affidavit’s contents until some four months after the search.
 

Thus, defendant did not have notice of the reasons for the
 

search; she could not “‘promptly know what [was] the
 

accusation against [her], upon what it [was] based . . . .’”
 

Moten, supra at 173, quoting Kaplan, supra. Regardless of
 

whether the instant warrant ever had an affidavit reciting
 

its basis, like the warrant that was delivered in Moten, the
 

2
 
instant warrant did not state its basis when it was delivered
 

to defendant. Like the defendant in Moten, then, the instant
 

defendant should not have the evidence gathered under such a
 

warrant admitted against her.
 

Second, I fear that the majority’s search for
 

legislative intent effectively upends the intent that is most
 

clear. Though MCL 780.655; MSA 28.1259(5) does not provide
 

on its face for any remedy, it clearly indicates the
 

Legislature’s policy of requiring officers to leave a copy of
 

the warrant, which must recite the basis for its issuance,
 

with the searched party or at the searched premises. Under
 

the decision in this case, however, there is no consequence
 

for a failure to do so.1 Further, under the majority’s
 

reasoning, there would similarly be no consequence for a
 

failure to tabulate the property seized, leave a copy of the
 

tabulation with the searched party or at the searched
 

premises, file that tabulation, or safely keep the property
 

seized.2 Each of these requirements is ministerial in nature
 

and occurs after the search, but each is required by this
 

statute. Although I would not anticipate police misconduct,3
 

1 Notably, the majority has not relied on the search


warrants act’s penalty provision, MCL 780.657; 28.1259(7), as


it did, erroneously in my view, in People v Stevens (After


Remand), 460 Mich 626, 641; 597 NW2d 53 (1999), as a reason


not to apply the exclusionary rule in this case. 


2 Indeed, this Court has already indicated that police


may destroy seized items without actually running afoul of


this statute. See People v Jagotka, 461 Mich 274, 279-280;


622 NW2d 57 (1999); see also id. at 282-283 (CAVANAGH, J.,
 

dissenting).
 

3 Whatever the role of the federal actors in this case,


(continued...)
 

3
 
even if officers did purposefully ignore this statute’s
 

requirements, it apparently would make no difference. Rather
 

than leave the Legislature’s policy of requiring police to
 

provide a warrant stating its basis so doubtful, I would
 

exclude the challenged evidence to ensure that the policy is
 

observed.
 

In closing, in People v Sloan, 450 Mich 160, 184, n 18;
 

538 NW2d 380 (1995), this Court stated that excluding
 

evidence as a remedy for a statutory violation was not a “new
 

phenomenon.” It apparently has now become the old
 

phenomenon, though, as the Court continues the trend it began
 

in People v Stephens (After Remand), 460 Mich 626, 641; 597
 

NW2d 53 (1999), and continues in this case, toward admitting
 

evidence despite statutory violations. In my view, this is
 

an erroneous course, so I continue to be unable to join this
 

trend. I would exclude the challenged evidence, affirm the
 

Court of Appeals, and would not disapprove of the Court of
 

Appeals decision in Chapin, supra. Therefore, I must
 

respectfully dissent.
 

KELLY, J., concurred with CAVANAGH, J.
 

3(...continued)


the prosecution has conceded that state law applies.
 

4