Search and Seizure in Michigan
Although the terms “search and seizure” are frequently used together, and many people assume they mean the same thing, the terms “search” and “seizure” are actually two very different things.
What does ‘search’ mean?
In Michigan, the legal term “search” refers to when the police officers look through your home, vehicle, body, business or another place, in an attempt to find evidence of suspected illegal activity. In most cases, in order to conduct a search, the 4th Amendment to the United States Constitution requires that law enforcement must have a search warrant based on probable cause of criminal activity. The warrant must be approved by a judge or magistrate. However, there are numerous exceptions to the search warrant requirement:
In many cases, police officers will arrive without a warrant, and ask to enter your home, vehicle, or clothing. People tend to be frightened of or intimidated by the police, and so they consent to the search. Obviously that can lead to an officer finding evidence of criminal activity, which then leads to criminal charges. If an officer asks if they can search your house, vehicle, or body, you must politely assert your right NOT to consent to the search! The Fourth Amendment of the United States Constitution affords you the right to refuse a search if an officer doesn’t have a warrant. Unfortunately, the police are not required to advise you of your right to refuse; therefore, you need to actively assert that right! Remember, you have every right to withhold your consent to search even when a cop tells you that he’ll get a search warrant anyway. Sometimes they can get the warrant and other times a warrant request is denied by the judge.
Search Incident to Arrest:
Another exception to the search warrant requirement is a Search Incident to Arrest, also called an SIA. If you are arrested, the police have the right to search the area for possible weapons, and also for other people who could cause the officers harm. This is usually referred to by officers as a “Wingspan” search because it has its limits.
The third exception, called the automobile exception, has to do with vehicles. In truth, your rights, when it comes to warrantless searches of your vehicle on the side of the road, are almost non-existent. If an officer pulls you over and has some reasonable suspicion, they have the right to search your vehicle for any suspected evidence of criminal activity or illegal paraphernalia.
Administrative or Inventory Search:
Another exception to the standard search warrant requirements, is the Administrative Search. Similar to the Vehicle exception, this tends to deal primarily with vehicles. For example, if someone is arrested for having drugs in their car, the arresting officers will have the car towed back to the police station, where it will be thoroughly searched for any additional evidence. Any other evidence they discover during this search is well within their rights to use.
Plain Smell / Plain View:
This exception refers to something that an officer might see or smell while he is performing his regular duties , which indicates criminal activity. For example, smelling marijuana or alcohol when an officer pulls someone over for speeding, or seeing someone through a window, shooting up heroin inside a house, while walking past outside on the sidewalk. The officer then has the right to investigate further without needing a warrant.
This exception has to do with circumstances where an officer may search a premises without a warrant if they are already there due to emergency reasons. Examples of this include:
- If an officer is chasing someone who has committed a crime, and that person enters a house, building, or vehicle in their attempt to get away, the officer may also enter that same home, building or vehicle without a warrant.
- If an officer needs to administer emergency aid, for example someone has been shot or stabbed and needs medical attention, the officer may enter a home or vehicle without a warrant.
- If the officer believes that there is destruction of evidence happening inside the home or vehicle, he or she may enter without a warrant. This could include any number of situations, like documents being burned, drugs being flushed down a toilet, or a gun being cleaned of fingerprints.
What does ‘seizure’ mean?
A “seizure: refers to when police stop you briefly to determine whether or not you were involved in any kind of illegal or criminal behavior. This is sometimes called a Terry Stop. However, before an officer can “seize” you, they must first have reasonable suspicion to believe that you are or were doing something illegal. This can mean anything, from you matching the physical description of someone the police are on the lookout for, to a bulge in your pocket that an officer suspects might be a gun, but is actually a pack of cigarettes and a lighter.
Once they have stopped you, an officer needs probable cause to believe that you are doing something illegal in order to arrest you. So if you are stopped for looking like a suspect, but then determined that you aren’t the person they are looking for, you are unlikely to be arrested. The same goes for the possible gun bulge in your pocket – once the officer has determined that it was nothing more than cigarettes and a lighter, he or she isn’t likely to arrest you. However, if while searching your pockets for that gun they happen to discover a crack pipe, or a baggie of cocaine, they have now found probable cause, and will arrest you.
What do I do if a cop wants to search me, my car, or my home?
First, before you even address the issue of a search, it is important that you remain calm and polite. Do not shout at the officers, call them names, or threaten them! Speak calmly and firmly, but do not give the officer any reason to think you may be a threat. Keep your hands out of your pocket and in plain view of the officer.
If an officer pulls you over in traffic, or comes knocking at your front door, the first thing you need to remember is to relax. Stay calm, and be polite. The police know that their presence alone is unnerving and intimidating to most people, and that these feelings of intimidation and fear can cause people to react by either:
1) saying things that are not in their own best interests, or
2) acting in ways that might interpreted as disrespectful.
Both of these potential reactions will make the situation worse for you, even if you haven’t done anything illegal to begin with. So make a conscious effort to stay calm. Choose your words carefully when speaking to an officer, and don’t say or ask or answer any more than is absolutely necessary. If you are concerned, or afraid that you may be in some kind of trouble, call us at the earliest opportunity.
Information about search warrants in Michigan
If the police have a search warrant, it is important that you exercise your right to see it. In Michigan, a search warrant has to be specific. So read the warrant carefully. Pay attention to whether the correct address is listed for the place to be searched (if it is a building). Another thing to be noted is if the warrant has been signed by a magistrate or judge. The absence of a valid signature or a correct address would make the warrant invalid, meaning that the police could not legally conduct the search.
Also, look at exactly what areas the warrant says are to be searched. A warrant has to be specific when it details the exact locations that the officers may search. For example, a search warrant must specify exactly which rooms in a house may be searched (like bedroom, living room or bathroom) When the officers conduct their searching, pay close attention to if the officers search any areas not covered by the warrant. If an officer searches any areas that aren’t mentioned in the signed warrant, they are conducting an illegal search. However, if you happen to notice an officer conducting an illegal search, it is best not to discuss this fact with the police. It is imperative, however, that you tell your attorney about it! You are very likely to lose an argument with a police officer, but your attorney can address it at the right time, in a way that is most beneficial to your case. Don’t argue with or resist the police. Simply and politely tell them that you do not consent to any search. You can say that even if the police have a warrant.
We can challenge the search warrant in court?
If you believe that the probable cause, which the police provided to a judge in order to get the search warrant, was incorrect and the officer knowingly used it anyway, you have the right to request an evidentiary hearing.
An evidentiary hearing would give you the chance to challenge the admissibility of specific evidence that was being used against you. Specifically, the evidence that the officer had used in order to get the search warrant. According to the United States Supreme Court, an evidentiary hearing is a constitutional right which cannot be denied by a judge when the Defendant is able to show the following two things:
1) that a false or incorrect statement was knowingly, intentionally, or recklessly included in the affidavit that the officer submits to a judge in order to get the search warrant signed, and
2) that the false statement was necessary for the officer to find probable cause for the warrant to be issued.
In order for someone to be able to request that the judge grant them an evidentiary hearing, they must be able to show that the search warrant affidavit contained false information They must also be able to show that the police officer who requested the warrant used that false information, knowing it was untrue, to support their claim of probable cause.
Should you consent to a search?
Most important, however is your consent. As we mentioned before, the police do not need a warrant if they have your permission to conduct a search. So never consent to a search of your home, business, vehicle or body! Do not be disrespectful, but politely and firmly tell the officer that you do not consent to the search. If they do not have a warrant, they will try to get you to give them permission.
Do not allow an officer to manipulate, bully, or coerce you into agreeing. In many cases officers will tell people that if they have nothing to hide they wouldn’t be refusing. They also sometimes say that refusing makes you look bad, or will harm your case. Neither of these things is true. However, do not try to argue this with the police. Simply continue to repeat that you do not consent to a search, which is your right to do.
Many officers, when they are denied the right to search, will tell people that they can easily get a warrant. This may true, but do not think it means that you should consent to a search! An officer may tell you that you should simply allow them to conduct the search because they will be back shortly with the warrant and you are just delaying the inevitable. Or they may accuse you of trying to buy time to destroy evidence. Once again, do not argue with them! Do not get caught up in their rhetoric or fall prey to their tactics.
Also, just because an officer claims that they can get a warrant, doesn’t mean that they can. An officer needs to provide a judge with probable cause in order to get a signed warrant. No officer can search a person, a vehicle or a home simply because they want to. Probable cause for a warrant is defined as ‘facts that would lead a reasonably cautious person to believe that evidence of a crime will be found in the stated location’.
Politely inform the officers that if they intend to request a search warrant, you would like to know exactly what they are searching for, and what probable cause they believe they have to justify their search. Another thing to keep in mind is that your refusal to consent to a search does not give the police probable cause to seek a search warrant.
When should I call an attorney to protect my rights?
As soon as possible! Do not wait even one minute more than you need to! If officers have shown up at your door, asking to search your home, vehicle or even yourself, call us immediately! One of the most important opportunities you have to protect your Constitutional rights is when you are confronted by the police without an attorney present. Whether or not you’ve done anything illegal, this is the time to ensure that your rights are properly protected. The moment you are with a law enforcement officer, and you don’t have experienced legal counsel with you, you are dangerously vulnerable. The police know this too, and are likely to use this opportunity to get you to say or do something incriminating, like submitting to a search.
Obviously, it is in your best interests to contact a highly skilled and experienced defense attorney as soon as possible. The moment an officer shows you a search warrant and begins the search, if not before then, you should call us. The sooner you contact a trusted attorney to ensure that your rights aren’t being violated, the better your chances of surviving the upcoming legal storm. The sooner your legal representative is notified and involved, the sooner we can work to ensure that your Fourth Amendment rights are being properly protected.
The trusted and experienced attorneys at The Kronzek Firm can be reached 24 hours a day, 7 days a week at 866 766 5245. We offer free initial consultations, and have been protecting people all over Michigan from police abuses, unreasonable searches and seizures, and all kinds of other rights violations. So contact us as soon as possible to protect your rights and ensure that you have the best and most trusted legal team on your side from the very beginning. Whether you live in Lansing, Detroit, Grand Rapids, or any other part of Michigan’s lower peninsula, we are here to help you.