COURT FOR THE COUNTY OF 
| Chapter 8: Search and Seizure |
8-1 Overview of Search and Seizure
The Fourth Amendment to the United States Constitution and Article 1, Section 11 of the Michigan Constitution forbid "unreasonable searches and seizures." This chapter will not attempt to exhaust the body of law devoted to these constitutional principles. For an excellent guide to that law, refer to the Defender Trial Book (State Appellate Defender Office, 2000). Rather, this chapter will outline the general principles of litigating search and seizure claims in motions practice.
Many times a motion to suppress physical evidence can be case-dispositive. In general, your motions to suppress physical evidence should set forth all the possible grounds for suppression. Your motion must allege facts which, if true, would justify the suppression of the seized evidence. If, when the prosecution answers your motion, its version of the facts differs from those you have alleged, the court will hold a hearing. Often prosecutors do not respond in writing to defense motions. You should insist on a clear response in writing so you know how to litigate your motion.
In addition to alleging facts of an illegal search or seizure, you must also allege facts which indicate that your client has standing to contest the violation. There is often a tactical decision to make here. If your defense at trial will be that your client was not in possession of the property, you must think carefully about the risks and the benefits of bringing a suppression motion that alleges that your client did have a possessory interest in the property. This is not a decision that can be made in the hypothetical sense. You must weigh the strength of your suppression claim against that of your trial strategy.
Because one of your goals will be to get the relief you are requesting without giving up information about your own strategy, you will want to think carefully about the way you state the relevant facts in your motion. While you must always allege all possible legal grounds for suppression, you will want to figure out how to allege just enough facts. If you fail to allege a possible legal ground for suppression, you will likely be precluded from raising it at the hearing and also, as discussed in the introduction section to this book, you will be precluded from raising it in a later appeal.
8-2 Goals in Moving to Suppress
Of course, you will often have the goal of winning your suppression motion and gaining a significant, sometimes case-dispositive, victory for your client. At the same time, you should think about the other goals that you might have in bringing a motion to suppress. At a hearing on a motion you will be able to learn a great deal about the prosecution's case, see and hear the witnesses who will testify against your client at trial, and lock those witnesses into testimony that they will have to live with at trial. Each of these goals should be given your consideration as you prepare your motion to suppress, and as you prepare for a hearing on that motion.
1. the preliminary examination testimony;
2. the preliminary examination testimony supplemented with additional testimony; or
3. new evidentiary hearing testimony.
There may be occasions where it is in your client's interest to have the court decide the issue on the testimony from the preliminary examination only, without allowing the prosecution to supplement that testimony. Again, this is a strategic decision that can only be made in the context of your own client's case.
8-3 General Principles of Search and Seizure Motion Practice
The Fourth Amendment's limitations on unreasonable searches and seizures governs state prosecutions by incorporation into the Due Process Clause of the Fourteenth Amendment, Mapp v Ohio, 367 US 643; 81 SCt 1684; 6 LEd2d 1081 (1961). Michigan Constitution 1963, Article 1, Section 11 is the analogous state constitutional provision.
Searches which were "conducted outside the judicial process, without prior approval by a judge or magistrate, are per se unreasonable under the Fourth Amendment - subject to only a few specifically established and well-delineated exceptions." Katz v United States, 389 US 347, 357; 88 SCt 507; 19 LEd2d 576 (1967). Those exceptions are when the search occurs:
1. as a result of valid consent of an authorized person; incident to a valid arrest; under "exigent circumstances;" when certain motor vehicle stops are made; and when objects are in plain view; or
2. where the intrusion was minimal or where, as a practical matter, the police could not have obtained a warrant. Terry v Ohio, 392 US 1, 20; 88 SCt 1868; 20 LEd2d 889 (1968).
Specifically, in Michigan, where there is reasonable cause to believe a felony was committed and reasonable cause to believe your client committed it, your client can be arrested without a warrant. MCL 764.15(d); MSA 28.874 (d). This is not the case with misdemeanors, however, where the arresting officer must have witnessed the crime to make a lawful arrest. There are a few specific exceptions to this rule, such as domestic violence cases, and drunk driving cases where there has been an accident.
Your client must have standing, or a sufficient interest in the area searched or item seized, to challenge the police action. Standing has been recognized in:
Home: Rakas v Illinois, 439 US 128; 99 SCt 421; 58 LEd2d 387 (1978), unless vacated by defendant, People v Nash, 418 Mich 196 (1983).
Backyard: People v Hopko, 79 Mich App 611 (1977); but see People v Smola, 174 Mich App 220 (1988).
Residence where overnight guest: Minnesota v Olson, 495 US 91; 110 SCt 1684; 109 LEd2d 85 (1990). One who is merely present, or short-term guests for illicit purposes, have no expectation of privacy. Minnesota v Carter, 525 US 83; 119 SCt 469; 142 LEd2d 373 (1998); People v Parker, 230 Mich App 337 (1998).
Motel room: People v Oliver, 417 Mich 366 (1983).
Trash: expectation of privacy if on property and close to single family dwelling; but not if off the premises. People v Whotte, 113 Mich App 12 (1982).
Restroom stall: limited expectation of privacy, People v Kalchik, 160 Mich App 40 (1987).
Open field: no expectation of privacy, Oliver v US, 466 US 170; 104 SCt 1735; 80 LEd2d 214 (1984); People v Mackey, 121 Mich App 748 (1982); People v Rotar, 137 Mich App 540 (1984).
And, finally, there is a procedural question of whether, when a search or seizure was unconstitutional, the prosecution may nevertheless use the evidence at trial because it is not viewed as "tainted" by the unlawful search or seizure. If the evidence would have been ultimately or inevitably discovered by lawful means, it is not subject to the exclusionary rule. Nix v Williams, 467 US 431; 104 SCt 2501; 81 LEd2d 377 (1984).
Once the defendant has alleged an illegal search or seizure, it is the prosecution's burden to establish the legality of the police action. People v White, 392 Mich 404 (1974), cert den 420 US 912 (1975).
8-4 State Constitutional Protections and Statutory Provisions
As discussed in the introduction section to this book, it is important to always cite both the state and federal constitutional grounds for your motion to suppress tangible evidence. While the Michigan Constitution cannot provide your client with less constitutional protections, there may be areas where it provides your client with greater protections. For example, while the federal exclusionary rule has a "good faith" exception, United States v Leon, 468 US 897; 104 SCt 3430; 82 LEd2d 677 (1984), Michigan does not, People v Landt, 188 Mich App 234, rev'd on other grds, 439 Mich 870 (1991). People v Bloyd, 416 Mich 538 (1982). Be certain that you know the protections offered by both constitutions, and cite both.
8-5 Analyzing Search and Seizure Issues
As you think through the possibilities for motions to suppress physical evidence, it is often helpful to work through a check-list of possible avenues for relief and the bases for them. This checklist should not be considered exhaustive, but rather a beginning for you to organize your Fourth Amendment claims.
1. Was your client stopped, arrested or taken into custody by the police at any time?
Think of the arrest as a film that you can slow down and "freeze-frame" as each action occurs. Break down the police action as much as possible. If the police intrusion escalated throughout an encounter with your client, consider whether the police have an articulable basis for each escalation. Your challenge to the police action may be multi-faceted.
a. By whom? Was this person a state actor?
Not only a traditional law enforcement officer is bound by constitutional principles. Parole officers, health, fire or building inspectors, safety inspectors and conservation officers are also required to follow the law. Store security guards, however, generally are not.
b. If so, how would you characterize that police action? Was it an "arrest" or something short of that?
Think strategically about how to characterize the action. It may be more advantageous to characterize it one way, rather than another.
c. If it was something short of an "arrest," was it a Terry stop?
If so, was it warranted? Did the police have the authority to make such a stop?
What facts will the police articulate to justify their action? Think about how can those facts be countered or cast as equally consistent with innocence. This is your opportunity to describe the facts in your client's favor.
Did they conduct a frisk after that stop? If so, were they entitled to under the circumstances?
d. If it was an "arrest," did the police have probable cause?
Remember, an "arrest" is merely a seizure requiring probable cause. That the police did not consider your client under formal arrest until another point during the encounter is not at all dispositive of the legal question of whether the police seized your client in such a way that they needed probable cause to do so. Generally, if a reasonable person would not feel free to leave the police encounter, it is an arrest.
e. Did the police search your client's person incident to the arrest? Was the search lawful?
f. Did the police search any closed containers (bags, knapsacks etc.) in your client's possession?
2. Did police enter or search your client's home, or other premises in which your client has standing?
a. Did the police have a search warrant? Was it issued validly and executed validly?
Consider whether the warrant complied with federal and state constitutional standards and met statutory requirements. Be willing to compare the facts alleged in the affidavit with the actual facts.
b. Did the police have an arrest warrant? Did the police limit their activity to that proscribed by warrant or use it to search more?
If the police did not have an arrest warrant and your client is charged with a misdemeanor, the arrest may have been unlawful.
c. Was there an exigency that allowed the search?
Is what the police considered an exigency considered one under the law? Were there other witnesses who can corroborate the description?
d. Did someone consent to the search? Did that person have the authority to consent to the search?
It is not necessarily the case that another member of the same household has the authority to consent to a search of the entire household. Parents can not necessarily give a valid consent to a search of their children's rooms, and vice versa. Co-tenants cannot necessarily give a valid consent to a search of their roommate's rooms. Also, the police may not coerce consent.
e. Were the items seized in plain view?
Were there other witnesses to the seizure? It may be helpful if there are witnesses, other than your client, who can say that the items seized were not in plain view.
3. Did police stop, search or seize a motor vehicle in which your client had standing?
a. Did police stop the vehicle? What was their basis for the stop?
If the basis for the stop was a traffic violation, was that used as a pretext?
If it seems that the police did witness some kind of traffic infraction but you still believe that the stop was pretextual, make that allegation. Think about what facts might support your argument that the stop was pretextual.
b. Did police order your client out of the vehicle?
If so, when? Consider whether anything else occurred to escalate the police action.
c. Did the police search the vehicle incident to the arrest of your client? Was the arrest valid? Was the search properly limited in scope?
The scope of the search is defined by the object of the search.
d. Did police conduct an evidentiary search of the vehicle? Did they have probable cause for that search?
Probable cause to believe that an automobile contains contraband or evidence or is transporting individuals who have committed, are committing or are about to commit a crime permits the police to search every part of the vehicle and any items in it which may conceal the object of the search.
e. Was the vehicle impounded and searched as an "inventory search?"
Was the search carried out in accordance with standard procedures? What are the parameters of those procedures?
4. Did the police act on the basis of information obtained from informants?
Is the source anonymous or known? Is the source reliable?
5. Is the evidence tainted by the violation?
a. Is it a "fruit?"
Think broadly about what might constitute a "fruit" of the illegal police action. In addition to physical evidence, statements or identification procedures can be "fruits" of an unlawful search or seizure.
b. Would it have been discovered by lawful means anyway?
Thinking through these, and other questions, about the police action that led to the recovery of the evidence that you are seeking to suppress will help you decide how to draft your suppression motion and how to litigate the issue at a hearing on the motion.
In drafting the motion it will rarely be necessary to include much more than enough facts to get your client a hearing. However, at the hearing, you will want to have thought through each level of police intrusion, including how you want to characterize it so that you can devise cross-examination strategy that is consistent with your theory.
The sample motions are of two types. First, we have drafted generic suppression motions which attempt to cover the most common fact scenarios, such as on-the-street encounters, car stops, and in-home searches with and without warrants. For most suppression of physical evidence motions, a simple motion like this one will do. However, when there is a more complicated issue presented in the facts (either as to the search or seizure, the question of standing, or a question of taint), we recommend filing a memorandum of law which addresses that question in more detail. In most cases, you are better off alleging enough facts to get your client a hearing, and addressing any problems after the benefit of testimony. After testimony comes in, address problems either in oral argument to the court, or by filing a supplemental brief on the issue with the court's permission. The exceptions may be: (1) if, in the prosecution's reply pleadings, the issue is flagged and you have concerns about whether the court will even grant you a hearing as a result (in that case, it may make sense to file a reply brief answering the issue); and (2) where you want to alert the court about a particular area of the law about which you suspect the court may need education, in order to frame the suppression issue in that context before the hearing. Again, this is a decision that cannot be made in the hypothetical, but must be made in the context of your client's case.
8.1.a Motion to Suppress (multiple grounds) [Download: WP | Word | PDF]
COURT FOR THE COUNTY OF
____________________________________
PEOPLE OF THE
STATE OF MICHIGAN,
Plaintiff,
vs No: 
Hon. 
John Doe,
Defendant.
_____________________________________/
Defendant, John Doe, by his attorney, moves this Court to suppress
as a result of an unlawful search or seizure. This motion is
based on the Fourth Amendment of the United States Constitution, Michigan Constitution 1963, Section 11, and the
following:
1. On September 1, 1999, the Defendant was charged with possession of a controlled substance in violation of MCL 333.7403; MSA 14.15(7403).
2. John Doe was standing on a public street when he was approached for no particular reason by Officer Roe. John Doe was not engaged in any criminal conduct. He was merely talking to two friends, conduct which is completely innocent.
3. Officer Roe detained the Defendant, Mr. Doe, and his friends. He proceeded to question them about what they were doing. Officer Roe searched the Defendant's pockets and knapsack, without his consent, and allegedly recovered a small bag of marijuana.
4. Officer Roe lacked reasonable suspicion needed to detain the defendant. Terry v Ohio, 392 US 1; 88 SCt 1868; 20 LEd2d 889 (1968); Florida v Royer, 460 US 491; 103 SCt 1319; 75 LEd2d 229 (1983); Adams v Williams, 407 US 143; 92 SCt 1921; 32 LEd2d 612 (1972); People v Walker, 130 Mich App 304 (1983).
5. The Defendant was not free to leave while Officer Roe detained him. Officer Roe's conduct amounted to a seizure requiring probable cause. Because Officer Roe lacked probable cause to seize Mr. Doe, the marijuana must be suppressed. People v Bloxsom, 205 Mich App 236 (1994). Officer Roe had no lawful basis for conducting a warrantless search of Mr. Doe's person.
As a result, Mr. Doe's right to be free from unreasonable searches and seizures was violated. US Const Am IV; Mich Const 1963, art 1, §11. The evidence recovered must be suppressed. Wong Sun v United States, 371 US 471; 83 SCt 407; 9 LEd2d 441 (1963); People v LoCicero, 455 Mich 496 (1996).
2. Mr. Doe was driving South on I-75 when he was motioned to pull his car over by Officer Roe. Mr. Doe complied with Officer Roe's order. Mr. Doe had not committed any traffic violations at the time he was pulled over.
3. After pulling his car to the side of the road, Mr. Doe provided Officer Roe with his license and registration, both of which were current and valid.
4. Officer Roe then ordered Mr. Doe out of his vehicle. Mr. Doe complied with Officer Roe's orders and stepped out of his car.
5. Officer Roe then proceeded to search Mr. Doe's car. Officer Roe's search included a search of a closed container in Defendant's glove compartment.
6. Officer Roe lacked any lawful basis to stop Mr. Doe's car. People v Parisi, 393 Mich 31 (1974).
7. Officer Roe also lacked any lawful basis to order Mr. Doe out of his car and proceed to search the car. Knowles v Iowa, 523 US 113; 119 SCt 484; 142 LEd2d 492 (1998).
As a result, the defendant, Mr. Doe's right to be free from unreasonable searches and seizures was violated. US Const Am IV; Mich Const 1963, art 1, §11. The evidence recovered must be suppressed. Wong Sun v United States, 371 US 471; 83 SCt 407; 9 LEd2d 441 (1963); People v LoCicero, 455 Mich 496 (1996).
2. John Doe lives at 1000 Maple Street, with his parents, Mary and David Doe. On Friday, September 1, 1999, Mr. Doe was at home watching television when Officer Roe knocked at the door. Mr. Doe's father answered the door.
3. Officer Roe entered the home and went to Mr. Doe's room. Officer Roe proceeded to search Mr. Doe's room and allegedly recovered a bag of marijuana from defendant's desk drawer.
4. Officer Roe did not have a warrant to search Mr. Doe's room.
5. John Doe did not give Officer Roe permission to search his room. Mr. Doe's father or mother did not give Officer Roe permission to search Mr. Doe's room. Nor did his father or mother have the authority to give Officer Roe permission to search Mr. Doe's room, which was not a common area, People v Bunker, 22 Mich App 396 (1970), habeas grt'd on other grds 995 F2d 1066 (CA6, 1993). John Doe's father or mother did not have "common authority" over his room, People v Goforth, 222 Mich App 306 (1997).
[You may also want to allege specifically how your client's room is not a common area and how the parents do not have "common authority" over the room; e.g., there are locks or other obstacles preventing access, your client excludes others from the space, the room is not shared with others, the parents do not do your client's laundry or clean the room, the parents do not frequently visit the room, your client pays rent to the parent on a regular basis.]
6. As a result, Mr. Doe's right to be free from unreasonable searches and seizures was violated. Chimel v California, 395 US 752; 89 SCt 2034; 23 LEd2d 685 (1969). US Const Am IV; Mich Const 1963, art 1, §11. Because the evidence was recovered as a result of that illegal search/seizure, it must be suppressed. Wong Sun v United States, 371 US 471; 83 SCt 407; 9 LEd2d 441 (1963); People v LoCicero, 453 Mich 496 (1996).
2. John Doe lives at 1000 Maple Street with his parents, Mary and David Doe. On Friday, September 1, 1999, Mr. Doe was at home watching television when Officer Roe knocked at the door. John Doe's father answered the door.
3. Officer Roe showed Mr. Doe a search warrant which, he claimed, gave him permission to search Mr. Doe's room.
Attach warrant as exhibit.
4. Officer Roe entered the home and went to Mr. Doe's room.
5. Officer Roe proceeded to search Mr. Doe's room and allegedly recovered a bag of marijuana from Mr. Doe's desk drawer.
6. John Doe did not give Officer Roe permission to search his room.
7. John Doe's father or mother did not give Officer Roe permission to search Mr. Doe's room nor did he or she have the authority to give Officer Roe permission to search Mr. Doe's room. Mr. Doe's room was not a common area, People v Bunker, 22 Mich App 396 (1970), habeas grt'd on other grds 995 F2d 1066 (CA6, 1993), and his or her father or mother did not have "common authority" over his room, People v Goforth, 222 Mich App 306 (1997).
[You may also want to allege specifically how your client's room is not a common area and how the parents do not have "common authority" over the room; e.g., there are locks or other obstacles preventing access, your client excludes others from the space, the room is not shared with others, the parents do not do your client's laundry or clean the room, the parents do not frequently visit the room, your client pays rent to the parents on a regular basis.]
8. The search warrant was not issued validly. Franks v Delaware, 438 US 154; 98 SCt 2674; 57 LEd2d 667 (1978).
9. The search warrant was not executed validly. Office Roe failed to leave any documentation of the search, at the search scene, including a copy of the warrant, affidavit, or list of items seized.
10. As a result, Mr. Doe's right to be free from unreasonable searches and seizures was violated. US Const Am IV; Mich Const 1963, art 1, §11. The evidence recovered must be suppressed. Wong Sun v United States, 371 US 471; 83 SCt 407; 9 LEd2d 441 (1963); People v LoCicero, 455 Mich 496 (1996).
For these reasons, John Doe requests that this Court grant his motion to suppress the marijuana seized from his desk drawer, as a result of an unlawful search and seizure, or, in the alternative, hold a hearing to resolve the issues presented in this motion.
Respectfully submitted,
_______________________
Attorney for Defendant
8.1.b Motion to Suppress (illegal arrest) [Download: WP | Word | PDF]
COURT FOR THE COUNTY OF 
_____________________________________
PEOPLE OF THE
STATE OF MICHIGAN,
Plaintiff,
vs No. 
Hon. 
John Doe,
Defendant.
______________________________________/
Defendant, John Doe, by his attorney, moves this Court to suppress all physical evidence seized by the police. This motion is based on the Fourth Amendment of the United States Constitution, and Section 11 of the Michigan Constitution 1963, and is supported by the accompanying memorandum of law.
1. John Doe was arrested on Friday, September 1, 1999, and charged with possession of a controlled substance, in violation of MCL 333.7403; MSA 14.15(7403).
2. On September 1, 1999, at approximately 9:00 p.m., a car owned by John Doe's father, David Doe, was broken into by an unknown individual while the car was parked at the Oak Street parking structure. The car window was smashed and some items were taken from the car.
3. Officer Roe arrived at the scene to investigate the incident. The officers called Mr. David Doe, who confirmed that he was the owner of the car and that his son, John, had taken the car out that night with his permission.
4. John Doe, and two of his friends, subsequently arrived at the parking structure to get his father's car and go home. When they approached the car, they saw Officer Roe standing near the car, and noticed that the car window had been broken.
5. Officer Roe asked both John Doe and his friends for identification. They gave Officer Roe their identification and, in addition, John Doe gave Officer Roe the owner's registration from the car.
6. After Officer Roe inspected the identification, and although the police had learned from David Doe that John had permission to use the car, Officer Roe conducted a Law Enforcement Information Network (LEIN) search of John Doe's identification. This search revealed a prior outstanding warrant for contempt of court.
7. After discovering John Doe's outstanding warrant, Officer Roe placed him under arrest. The officer then searched Mr. Doe and allegedly recovered a plastic, yellow container filled with marijuana.
8. Officer Roe's detention of Mr. Doe to run the LEIN search was not limited to the circumstances justifying the detention, and was therefore, illegal.
For these reasons, John Doe requests that this Court grant his motion to suppress the marijuana seized by Officer Roe or, in the alternative, hold a hearing to resolve the issues presented in this motion.
Respectfully submitted,
______________________
Attorney for Defendant
8.1.b.1 Memorandum of Law in Support of Motion to Suppress (illegal arrest) [Download: WP | Word | PDF]
COURT FOR THE COUNTY OF 
____________________________________
PEOPLE OF THE
STATE OF MICHIGAN,
Plaintiff,
vs No. 
Hon. 
John Doe,
Defendant.
_____________________________________/
On September 1, 1999, Detroit Police Officer Roe discovered an automobile in the Oak Street parking structure with a broken window. The police called John Doe's father, David Doe, to whom the car was registered. David Doe informed Officer Roe that he owned an automobile fitting the description given to him by Officer Roe, and that his son was using the car with his permission.
After this call, the Defendant John Doe and his friends arrived at the scene of the investigation. They provided Officer Roe with proper identification. John Doe also provided Officer Roe with the registration for the vehicle. After looking over the identification, Officer Roe took the licenses to his cruiser in order to run a LEIN search.
This search revealed an outstanding bench warrant for contempt of court against John Doe. Mr. Doe was then placed under arrest. Upon conducting a pat-down search, incident to the arrest, the officer recovered 3.58 grams of marijuana.
Because the police officers lacked reasonable suspicion of a crime, the detention of the defendant was unlawful and the evidence acquired pursuant to that detention should be suppressed.
The police detention of Mr. Doe was unlawful under Michigan law and, therefore, the evidence seized during that detention should be suppressed. In People v Burrell, 417 Mich 439, 457 (1983), the Supreme Court of Michigan held that:
Since Fourth Amendment rights are involved in a detention, however brief, the intrusiveness of the police activity must be carefully limited to the circumstances justifying the detention. Put another way, the detention must have an object (that fact or event which will resolve a police officer's reasonable and articulable suspicion) which is ascertainable and near at hand. This is as true for a brief detention associated with a LEIN check to determine if a car is stolen as it would be for a longer detention.
According to the Court, the reason for the detention must correspond to investigation of some criminal matter. Under Burrell, Officer Roe had the right to detain Mr. Doe no longer than necessary to ascertain his identity, and therefore the right to use the vehicle.
Before detaining Mr. Doe, Officer Roe had spoken to Mr. Doe's father. David Doe had informed Officer Roe that his son John was driving his car that evening with his permission. Officer Roe had the right to detain Mr. Doe and his friends in order to ascertain their identification. After checking the identification of both Mr. Doe and his friends, and checking the registration of the vehicle, Officer Roe had no further reasonable or articulable suspicion regarding the ownership of the automobile. He therefore had no further right to consider either Mr. Doe or his friends as suspects in the investigation of the broken car window.
The Supreme Court of Michigan has held that a detention "must be reasonably related in scope to the circumstances that justified interference by the police." People v Champion, 452 Mich 92, 98 (1996), cert den 519 US 1081 (1997). The LEIN check served no purpose that forwarded the investigation of the broken window. Nor did it further the effort to identify John Doe or his friends.
For this reason, the detention of Mr. Doe in order to run the LEIN check was unlawful and the evidence acquired pursuant to that check was unlawfully acquired and must be suppressed.
Respectfully submitted,
_______________________
Attorney for Defendant