11.9Exclusionary Rule

“The exclusionary rule is a jurisprudential creation rather than a constitutional rule of law” and “operates to exclude or suppress evidence in certain legal proceedings if the evidence is obtained in violation of a person’s constitutional rights.” Long Lake Twp v Maxon, ___ Mich ___, ___ (2024) (deciding whether to exclude from evidence aerial photographs and video of a landowner’s property taken by a drone commissioned by the local zoning board in a civil proceeding about zoning violations and enforcement). “The contemporary understanding of the exclusionary rule is that it is a judge-made rule intended to deter law enforcement misconduct in the context of the Fourth Amendment.” Id. at ___(observing that although the United States Constitution and Michigan’s 1963 Constitution prohibit “unreasonable searches,” “neither Constitution prescribes the remedy if the government unreasonably searches a person or property”). The exclusionary rule “is not a constitutional right, and it is not intended to vindicate a defendant’s constitutional rights.” Id. at ___. Instead, “the objective of the exclusionary rule is to deter misconduct that gives rise to constitutional violations[.]” Id. at ___.

“Generally, evidence obtained in violation of the Fourth Amendment is inadmissible as substantive evidence in criminal proceedings.” In re Forfeiture of $176,598, 443 Mich 261, 265 (1993); see Mapp v Ohio, 367 US 643 (1961) (holding that the exclusionary rule applies to state governments through the incorporation doctrine). The exclusionary rule “is a cornerstone of American jurisprudence that affords individuals the most basic protection against arbitrary police conduct.” In re Forfeiture of $176,598, 443 Mich at 265. However, there are exceptions to the exclusionary rule and situations in which the exclusionary rule does not apply. People v Hellstrom, 264 Mich App 187, 193-194 n 3 (2004).

While the exclusionary rule generally applies “in the context of criminal proceedings,” it is rarely applied in civil proceedings. Maxon, ___ Mich at ___. The Michigan Supreme Court has “applied the rule to searches related to quasi-criminal legal matters or to the warrantless extraction of blood from a person [after an automobile crash in subsequent civil negligence or wrongful-death proceedings].” Id. at ___ (declining “to extend application of the exclusionary rule to civil enforcement proceedings that effectuate local zoning and nuisance ordinances and seek only prospective, injunctive relief”). The United States Supreme Court has “declined to order exclusion of wrongfully seized evidence when the exclusion would not deter unconstitutional law enforcement activity.” Id. at ___ (e.g., parole-revocation hearings, grand-jury proceedings, civil tax proceedings, civil deportation proceedings, and impeachment of a defendant’s testimony). Like the Michigan Supreme Court, the Supreme Court of the United States has extended the rule to civil proceedings in limited circumstances. Id. at ___. “For example, both courts have applied the exclusionary rule to civil asset-forfeiture cases.” Id. at ___ (“Such proceedings are known as quasi-criminal proceedings.”).

“Limitations on the exclusionary rule are justified because the use of unconstitutionally seized evidence in a criminal proceeding does not itself violate the Constitution.” Id. at ___. “Rather, a violation of the Constitution arises from the illegal search or seizure itself, and no exclusion of evidence can cure the invasion of rights a person has already suffered.” Id. at ___. “Ultimately, reviewing courts must consider whether the rule’s deterrence benefits outweigh the substantial social costs inherent in precluding consideration of reliable, probative evidence.” Id. at ___ (quotation marks and citation omitted). In other words, “application of the exclusionary rule involves weighing the costs and benefits in each particular case.” Id. at ___ (quotation marks and citation omitted) (cautioning that the exclusionary rule does not “apply in every circumstance in which it might provide marginal deterrence”).

A.Exceptions Involving the Causal Relationship Between the Unconstitutional Act and the Discovery of the Evidence

“Three of [the] exceptions [to the exclusionary rule] involve the causal relationship between the unconstitutional act and the discovery of evidence.” Utah v Strieff, 579 US 232, 238 (2016). These exceptions are the inevitable discovery doctrine, the independent source doctrine, and the attenuation doctrine. Id.

1.Inevitable Discovery Doctrine

“[T]he inevitable discovery doctrine allows for the admission of evidence that would have been discovered even without the unconstitutional source.” Strieff, 579 US at 238, citing Nix v Williams, 467 US 431, 443-444 (1984). “The inevitable discovery exception generally permits the admission of tainted evidence when the prosecution can establish by a preponderance of the evidence that the information ultimately or inevitably would have been revealed in the absence of police misconduct.” People v Stevens (After Remand), 460 Mich 626, 637 (1999). Whether the inevitable discovery doctrine applies requires an analysis of three basic questions:

•Are the legal means of discovery truly independent of the unlawful conduct that first led to the evidence’s discovery?

•Are both the use of the legal means and the discovery of the evidence at issue by that means truly inevitable?

•Does application of the inevitable discovery exception either provide an incentive for police misconduct or significantly weaken Fourth Amendment protection? Stevens (After Remand), 460 Mich at 638 (citation omitted).

In Stevens (After Remand), 460 Mich at 642-643, 647, the Supreme Court held that the inevitable discovery exception to the exclusionary rule was applicable where “the police were acting under a valid search warrant and within the scope of that warrant[,]” “[e]ven though the method of entry into the dwelling violated . . . knock-and-announce principles[.]” The Court also noted that “[t]here are both state and federal sanctions for such violations that serve as deterrents for police misconduct that are less severe than the exclusion of the evidence[,]” and that “exclusion of the evidence w[ould] put the prosecution in a worse position than if the police misconduct had not occurred.” Id. at 647.

See also People v Vasquez (After Remand), 461 Mich 235, 241-242 (1999) (holding that evidence was admissible pursuant to the inevitable discovery doctrine because it would have been discovered during the execution of a valid search warrant without regard to whether police violated the knock and announce statute).

The inevitable discovery doctrine cannot be used as an exception to the warrant requirement merely because probable cause existed to obtain a search warrant even though one was not obtained before the search took place. People v Hyde, 285 Mich App 428, 442, 445 (2009). In Hyde, 285 Mich App at 433, the defendant gave a blood sample following a traffic stop, and the blood test revealed that his blood alcohol content exceeded the legal limit. The defendant moved to suppress his blood sample and the blood test results on the basis that his consent was coerced because the police incorrectly informed him that he was required to provide his blood under the informed consent statute, MCL 257.625c, even though he fell under an exception and was considered not to have given consent to a blood test because he had diabetes. Hyde, 285 Mich App at 435, 440-441. The trial court denied the defendant’s motion to suppress, holding that his bodily alcohol content would have been inevitably discovered by the police had they obtained a warrant, or by the defendant had he consented to a breath or urine test. Id. at 435, 442. The Court of Appeals rejected the trial court’s rationale that the evidence would have been inevitably discovered through a search warrant:

“To allow a warrantless search merely because probable cause exists would allow the inevitable discovery doctrine to act as a warrant exception that engulfs the warrant requirement. Even in the context of a good-faith error, we reject the notion that a post hoc probable cause analysis can preclude the constitutional requirement that a neutral and detached magistrate issue the warrant. Such an approach diminishes the Fourth Amendment and is an incentive for improper or careless police practices.” Id. at 445-446.

See also People v Mahdi, 317 Mich App 446, 470 (2016) (“the inevitable-discovery doctrine [did] not apply to the seizure of [a] cell phone, wallet, and set of keys[]” from the defendant’s mother’s apartment where, “[e]ven assuming that the officers had probable cause to obtain a warrant for [these items], the officers were not in the process of obtaining a warrant when they seized the items[]”).

2.Independent Source Doctrine

“[T]he independent source doctrine allows trial courts to admit evidence obtained in an unlawful search if officers independently acquired it from a separate, independent source.” Strieff, 579 US at 238, citing Murray v United States, 487 US 533, 537 (1988). See also Nix, 467 US at 443 (“[t]he independent source doctrine allows admission of evidence that has been discovered by means wholly independent of any constitutional violation”); Silverthorne Lumber Co, Inc v United States, 251 US 385, 392 (1920).

“The independent source doctrine teaches us that the interest of society in deterring unlawful police conduct and the public interest in having juries receive all probative evidence of a crime are properly balanced by putting the police in the same, not a worse, position that they would have been in if no police error or misconduct had occurred. When the challenged evidence has an independent source, exclusion of such evidence would put the police in a worse position than they would have been in absent any error or violation.” Nix, 467 US at 443 (internal citations omitted).

Evidence seized from a dwelling pursuant to a valid search warrant issued after an officer’s unlawful entry into that dwelling is admissible when probable cause for the warrant’s issuance is based on information independent of the illegal entry. People v Smith, 191 Mich App 644, 646 (1991).

3.Attenuation Doctrine

“In some cases, . . . the link between the unconstitutional [police] conduct and the discovery of the evidence is too attenuated to justify suppression.” Strieff, 579 US at 235. “Evidence is admissible [under the attenuation doctrine] when the connection between unconstitutional police conduct and the evidence is remote or has been interrupted by some intervening circumstance, so that ‘the interest protected by the constitutional guarantee that has been violated would not be served by suppression of the evidence obtained.’” Id. at 238, quoting Hudson, 547 US at 593; see also Nardone v United States, 308 US 338, 341-343 (1939).

In determining whether there “was a sufficient intervening event to break the causal chain between the” unconstitutional police conduct and the discovery of the evidence, “[t]he three factors articulated in Brown v Illinois, 422 US 590 (1975), guide [the] analysis.” Strieff, 579 US at 239.

“First, [the court should] look to the ‘temporal proximity’ between the unconstitutional conduct and the discovery of evidence to determine how closely the discovery of evidence followed the unconstitutional search. . . . Second, [the court should] consider ‘the presence of intervening circumstances.’ . . . Third, and ‘particularly’ significant, [the court should] examine ‘the purpose and flagrancy of the official misconduct.’” Strieff, 579 US at 239, quoting Brown, 422 US at 603-604; see also People v Reese, 281 Mich App 290, 299 (2008).

“The first factor, temporal proximity[,] . . . [does not] favor[] attenuation unless ‘substantial time’ elapses between an unlawful act and when the evidence is obtained.” Strieff, 579 US at 239 (citation omitted). The third factor, on the other hand, “favor[s] exclusion only when the police misconduct is most in need of deterrence—that is, when it is purposeful or flagrant.” Id. at 241.

“The attenuation doctrine evaluates the causal link between the government’s unlawful act and the discovery of evidence, which often has nothing to do with a defendant’s actions[, a]nd . . . [application of the doctrine] is not limited to independent acts by the defendant.” Strieff, 579 US at 238-239 (rejecting the Utah Supreme Court’s conclusion that the doctrine applied “only ‘to circumstances involving an independent act of a defendant’s “free will” in confessing to a crime or consenting to a search[,]’” and holding that the doctrine was applicable in a case in which “the intervening circumstance that the State relie[d] on [was] the discovery of a valid, pre-existing, and untainted arrest warrant[]”).

In Strieff, 579 US at 235, the United States Supreme Court held that the attenuation doctrine applied “when an officer [made] an unconstitutional investigatory stop; learn[ed] during that stop that the suspect [was] subject to a valid arrest warrant; and proceed[ed] to arrest the suspect and seize incriminating evidence during a search incident to that arrest.” Applying the three factors set out in Brown, 422 US at 603-604, the Court explained:

“[T]he evidence discovered on [the defendant’s] person was admissible because the unlawful stop was sufficiently attenuated by the pre-existing arrest warrant. Although the illegal stop was close in time to [the defendant’s] arrest, that consideration is outweighed by two factors supporting the State. The outstanding arrest warrant for [the defendant’s] arrest is a critical intervening circumstance that is wholly independent of the illegal stop. The discovery of that warrant broke the causal chain between the unconstitutional stop and the discovery of evidence by compelling [the officer] to arrest [the defendant]. And, it is especially significant that there is no evidence that [the officer’s] illegal stop reflected flagrantly unlawful police misconduct.” Strieff, 579 US at 240-242 (noting that the warrant “was entirely unconnected with the stop[,]” that the officer “was at most negligent[]” in stopping the defendant, and that “there [was] no indication that [the] unlawful stop was part of any systemic or recurrent police misconduct[]”).

In a case that predated Strieff, 579 US 232, the Michigan Court of Appeals similarly held that, barring any egregious conduct on the part of the officers making the arrest, “discovery of an outstanding arrest warrant can dissipate or attenuate the taint of an initial illegal stop or arrest.” Reese, 281 Mich App at 303, 305. The Court noted that “whether the discovery of a preexisting warrant dissipates or attenuates the illegality of the initial stop or arrest will usually depend on two main points: ‘(1) what evidence did the police obtain from the initial illegal stop before they discovered the outstanding arrest warrant, and (2) whether that initial illegal stop was a manifestation of flagrant police misconduct—i.e., conduct that was obviously illegal, or that was particularly egregious, or that was done for the purpose of abridging the defendant’s rights.’” Id. at 303-304 (citation omitted).

“Purposeful and flagrant misconduct exists where: ‘(1) the impropriety of the official’s misconduct was obvious or the official knew, at the time, that his [or her] conduct was likely unconstitutional’ but engaged in it anyway, or where ‘(2) the misconduct was investigatory in design and purpose and executed “in the hope that something might turn up.”’” Reese, 281 Mich App at 304 (citations omitted). “But where the police only discover the defendant’s identity as a result of the initial illegal stop or arrest, and the police misconduct was not particularly egregious or the result of bad faith, the discovery of a preexisting arrest warrant will constitute an intervening circumstance that dissipates the taint of the initial illegal stop or arrest.” Reese, 281 Mich App at 304. Accordingly, “evidence that is discovered in a subsequent search incident to the lawful arrest need not be suppressed.” Id.

“[T]he attenuation doctrine [did] not operate to bar the exclusion of . . . evidence[]” where the fact pattern was “(1) an invalid seizure, (2) the search and discovery of contraband, and (3) the discovery of a valid arrest warrant[;]” “the discovery of the valid warrant for [the] defendant’s arrest was not an intervening act that ‘broke’ the causal chain between the initial, unlawful detention and the discovery of the evidence[]” where “the warrant had no effect on the actions taken by police . . . [or] on the evidence that was recovered from [the] defendant.” People v Maggit, 319 Mich App 675, 700 (2017) (citation omitted). “[A]pplication of the exclusionary rule [was] appropriate” where “the time between the illegal detention and the discovery of the evidence was relatively short[]” and “the case for suppression—and deterrence—[was] strong[][,]” because “[a]lthough there [was] no suggestion from the record that the police officer acted with ill intent, and every indication that the . . . police [were] attempting to remedy a real problem, the case nevertheless involve[d] an arrest—or attempted arrest—for simply walking into and out of a busy parking lot that was open to the public.” Id. at 700-703 (additionally noting that the “case present[ed] a case for deterrence[]” because the police department’s “pattern of behavior suggest[ed] that the seizure [at issue] could have been part of the ‘systemic or recurrent police misconduct’ about which the Court in [Strieff, 579 US 242] was concerned[]”).

B.Good Faith Doctrine

“Relying on federal precedent, our Supreme Court adopted the good-faith exception to the exclusionary rule in [People v Goldston, 470 Mich 523, 529 (2004).]” People v DeRousse, 341 Mich App 447, 465 (2022). “Under the good-faith exception, evidence obtained through a defective search warrant is admissible when the executing officer relied upon the validity of the warrant in objective good faith.” Id. at 465. “[T]he primary purpose of the exclusionary rule is to deter official misconduct by removing incentives to engage in unreasonable searches and seizures.” Id. at 465 (quotation marks and citation omitted). “The principal cost of applying the rule is, of course, letting guilty and possibly dangerous defendants go free—something that ‘offends basic concepts of the criminal justice system.’” Herring v United States, 555 US 135, 141 (2009), quoting United States v Leon, 468 US 897, 908 (1984). “[S]uppressing evidence obtained in objectively reasonable reliance on a subsequently invalidated warrant produces marginal or nonexistent benefits and cannot justify the substantial costs of exclusion.” DeRousse, 341 Mich App at 465 (punctuation and citation omitted). Accordingly, a “good faith exception” to the exclusionary rule has evolved. Goldston, 470 Mich at 528-537.

“When police act under a warrant that is invalid for lack of probable cause, the exclusionary rule does not apply if the police acted ‘in objectively reasonable reliance’ [(i.e., ‘good faith’)] on the subsequently invalidated search warrant.” Herring, 555 US at 142, quoting Leon, 468 US at 922 n 23 (1984). The “‘good-faith inquiry is confined to the objectively ascertainable question whether a reasonably well trained officer would have known that the search was illegal’ in light of ‘all of the circumstances.’” Herring, 555 US at 145, quoting Leon, 468 US at 922 n 23.

In Herring, 555 US 135, the United States Supreme Court reviewed several cases in which it held that the exclusionary rule did not apply under the circumstances present in those cases:

•“[T]he exclusionary rule did not apply when a warrant was invalid because a judge forgot to make ‘clerical corrections’ to it.” Herring, 555 US at 142, quoting Massachusetts v Sheppard, 468 US 981, 991 (1984).

•The exclusionary rule did not apply “to warrantless administrative searches performed in good-faith reliance on a statute later declared unconstitutional.” Herring, 555 US at 142, citing Illinois v Krull, 480 US 340, 349-350 (1987).

•The exclusionary rule did not apply “to police who reasonably relied on mistaken information in a court’s database that an arrest warrant was outstanding.” Herring, 555 US at 142, citing Arizona v Evans, 514 US 1 (1995).

“To trigger the exclusionary rule, police conduct must be sufficiently deliberate that exclusion can meaningfully deter it, and sufficiently culpable that such deterrence is worth the price paid by the justice system.” Herring, 555 US at 144. In Herring, 555 US at 135, the police arrested the defendant on a warrant listed in the database of a neighboring county. A search incident to arrest yielded drugs and a gun. Id. It was subsequently discovered that the warrant had been recalled but that the recall information was never entered into the database. Id. The defendant moved to suppress the evidence on the basis that his initial arrest was illegal. Id. The United States Supreme Court held that the exclusionary rule was not applicable to bar the admission of the evidence, because the police error arose “from nonrecurring and attenuated negligence . . . far removed from the core concerns that led [the Court] to adopt the [exclusionary] rule in the first place.” Id. at 144.

In Goldston, 470 Mich at 526, the police observed the defendant dressed as a fireman collecting money on a street corner, allegedly to donate to firefighters in New York following the September 11, 2001, terrorist attacks. The police confiscated the donations from the defendant and obtained a search warrant for his house that authorized, among other things, the seizure of any police and fire equipment. Id. at 526-527. The search yielded additional firefighter paraphernalia, a firearm, and drugs. Id. at 527. The trial court granted the defendant’s motion to suppress the evidence on the basis that the affidavit did not establish probable cause for the issuance of the warrant because the search warrant affidavit did not connect the place to be searched with the defendant, and did not state the date that the police observed the defendant soliciting money. Id. The Supreme Court applied the good faith exception to the exclusionary rule and concluded that although the warrant was later determined to be deficient, excluding the evidence obtained in good faith reliance on the warrant would not further the purpose of the exclusionary rule. Id. at 542-543.

“[E]ven if a constitutional violation by [police] officers had occurred on the basis of a lack of criteria sufficient to justify invocation of the community-caretaker exception[ to the warrant requirement],” the exclusion of marijuana evidence discovered after a warrantless entry into the defendant’s home was inappropriate where “the police, having at least some indicia of need, enter[ed] [the] home in a good-faith effort to check on the welfare of a citizen”; suppression of the evidence, rather than deterring police misconduct, “would only deprive citizens of helpful and beneficial police action.” People v Hill, 299 Mich App 402, 411, 414-415 (2013). See also People v Lemons, 299 Mich App 541, 549-550 (2013) (“even if [police] officers’ behavior fell short of satisfying the criteria set forth in the emergency-aid exception[ to the warrant requirement],” the exclusionary rule did not apply to drug evidence that was discovered following their warrantless entry into the defendant’s home; the officers, who were responding to a report that the front door of the home was open and blowing in the wind, “were acting in good faith” when they “entered the residence because they believed people could be inside and were in need of immediate aid”).

“[W]hen the police conduct a search in objectively reasonable reliance on binding appellate precedent, the exclusionary rule does not apply.” Davis v United States, 564 US 229, 249-250 (2011). In Davis, 564 US at 235-236, officers conducted a search that was legal under then-current case law, and before appeal, the United States Supreme Court distinguished that precedent, making the Davis search unlawful. The Davis Court stated that the exclusionary rule is not meant to deter a police officer from acting in good faith or from following existing law; thus, “[e]vidence obtained during a search conducted in reasonable reliance on binding precedent is not subject to the exclusionary rule.” Id. at 241.¹ See also People v Mungo (On Second Remand), 295 Mich App 537, 552-553, 556 (2012) (applying Davis, 564 US 229, and holding that because police acted in good-faith reliance on then-current United States Supreme Court precedent in conducting a search of the defendant’s car incident to a passenger’s arrest, the exclusionary rule did not apply to evidence discovered in that search, even though the search was rendered unconstitutional under a subsequently-issued United States Supreme Court decision); People v Short, 289 Mich App 538, 540 (2010) (holding that the trial court correctly denied the defendant’s motion to suppress evidence of weapons found in his car following a search incident to arrest, where even though the search was unconstitutional under the retroactive application of a new United States Supreme Court decision,² the police officers conducting the search acted reasonably and in good faith based on a long-standing line of case law under which the search was constitutional³).

“[T]he good-faith exception to an improperly issued search warrant   .   .   . [may] apply . . . [even when] the police officer who supplied the underlying affidavit for the search warrant also executed the warrant.” People v Adams, 485 Mich 1039, 1039 (2010). In Adams, 485 Mich at 1039, there was “no evidence that the officer provided an affidavit so lacking in indicia of probable cause as to render his subsequent official belief in its existence entirely unreasonable.” The Supreme Court held that because “[t]he evidence show[ed] that the officer executed the warrant with a good-faith belief that it was properly issued,” the Court of Appeals erred in relying on Leon, 468 US 897, to rule that the good-faith exception was inapplicable. Adams, 485 Mich at 1039.

The “good-faith exception to the exclusionary rule” did not apply where a search warrant was issued but “did not authorize a search of the barns located outside the curtilage of [the defendant’s] residence.” DeRousse, ___ Mich App at ___. While “the good-faith exception has been extended to cases where a search is conducted without a warrant,” “the record [did] not indicate that [the officer] conducted his search in objectively reasonable reliance on any statute or clerical error.” Id. at ___. Although the officer testified “that he believed the warrant authorized the search of the barns,” which “is sufficient to show his subjective good faith, the good-faith exception requires that the officer conducting the search [do] so while acting in objective, good-faith reliance on a search warrant.” Id. at ___ n 9. Thus, considering that the prosecution failed to offer any “analysis as to why, under the specific facts of [the] case, [the officer’s] actions were objectively reasonable,” the DeRousse Court held that “suppression of the evidence seized during the warrantless search of the barns was not barred by the good-faith exception to the exclusionary rule.” Id. at ___ n 9.

“[T]he rationale underlying the good-faith exception [did] not apply” where “the unlawful search was not attributable to an error made by a neutral and detached magistrate[.]” People v Hughes (On Remand), 339 Mich App 99, 112 (2021). In Hughes, “the search of . . . cell-phone data for evidence of armed robbery was not authorized by the warrant and therefore the officer was not relying on the magistrate’s finding of probable cause. Instead, the search was conducted at the request of the prosecutor, who erroneously determined that a second search warrant was not necessary. But unlike a magistrate, the prosecutor is not a neutral and detached decision maker but rather is part of the ‘law enforcement team.’” Id. at 112.

“The good faith exception to the exclusionary rule does not apply [to] a facially invalid general warrant upon which no reasonable officer could have relied in objective good faith.” People v Carson, ___ Mich App ___, ___ (2024). In Carson, the warrant “was so facially deficient by virtue of its failure to particularize the places to be searched and things to be seized that the executing officers could not have reasonably presumed it to be valid.” Id. at ___ (concluding the search warrant constituted “a general warrant authorizing a search of the phone’s entire contents for any incriminating evidence.”) The Court of Appeals observed that “[i]t is common knowledge that people store an incredible amount of personal data on their phones, and the prohibition against general warrants is long-established.” Id. at ___. “No officer could reasonably have believed that such a far-reaching search complied with the constitutional demand for particularity.” Id. at ___. “Lack of good-faith [was] further evidenced by the affidavit submitted by the police when they sought the search warrant because the police made no secret of their intent to engage in a fishing expedition.” Id. at ___ (noting the “preparing officer essentially admitted knowledge of the breadth of personal information available on modern cell phones . . . and stated his intent to comb through all of it.”) Notably, the Carson Court did “not hold that searches executed pursuant to a warrant that is defective by virtue of allowing an overly broad search of a person’s cell phone can never be saved by the good-faith exception”; “[h]owever, given the particularly egregious facts of th[e] case,” “the good faith exception [did] not apply, and the contents of defendant’s cell phone should not have been admitted at his trial.” Id. at ___.

“The mere fact of an illegal arrest does not per se require the suppression of evidence.” People v Corr, 287 Mich App 499, 508 (2010). “‘It is only when an “unlawful detention has been employed as a tool to procure any type of evidence from a detainee” that the evidence is suppressed under the exclusionary rule.’” Id. at 508-509 (citations omitted).

C.Statutory Violations

“[W]hen addressing the appropriate remedy for a statutory violation, the exclusion of evidence is not the go-to, or default, remedy. Instead, the drastic remedy of excluding evidence can only come into play if the legislative intent, gleaned from the words of the statute, permits its use.” People v Mazzie, 326 Mich App 279, 290 (2018). Accordingly, where the Secretary of State provided insurance information to the police, “even if . . . the Secretary of State violated [the confidentiality requirements of] MCL 257.227(4) [concerning vehicle registration] and [MCL 500.3101a(3)⁴ concerning certificates of insurance], those statutes provide no remedy for a violation of the confidentiality requirements, the Secretary of State is not a party to this action, and application of the exclusionary rule was improper based on this perceived statutory violation.” Mazzie, 326 Mich App at 289. Specifically, because “[n]othing within MCL 257.227 and MCL 500.3101a indicates a legislative intent that the drastic remedy of the exclusion of evidence should be applied for violations of these statutes,” and “[n]either statute indicates that, should the confidential information be shared in a manner other than specifically permitted, the exclusionary rule is applicable”; “even if the provision of the insurance information to the LEIN system was in violation of the statutes, the trial court erred in invoking the exclusionary rule to exclude evidence obtained from the vehicle.” Mazzie, 326 Mich App at 290, 291.

The exclusionary rule does not apply to violations of Michigan’s knock-and-announce statute, MCL 780.656. Hudson v Michigan, 547 US 586, 599-600 (2006).⁵

D.Exclusion as a Deterrent of Fourth Amendment Violations

“The Fourth Amendment says nothing about excluding evidence at trial when its commands are violated; rather, the exclusionary rule is a prudential doctrine created by the United States Supreme Court to compel respect for the prohibition against unreasonable searches and seizures. The sole purpose of the exclusionary rule is to deter future Fourth Amendment violations. Where suppression would fail to yield any appreciable deterrence, exclusion of the evidence is unwarranted. The deterrence benefits of exclusion vary with the culpability of a police officer’s conduct. When the police exhibit deliberate, reckless, or grossly negligent disregard for Fourth Amendment rights, the deterrent value of exclusion is strong and tends to outweigh the resulting costs to society in excluding evidence of criminal wrongdoing. When, however, the police act with an objectively reasonable good-faith belief that their conduct falls within the confines of the law or when their conduct involves only simple, isolated negligence, the deterrence rationale loses much of its force and exclusion serves no valid purpose.” People v Hammerlund, 337 Mich App 598, 607 (2021) (citations omitted).

“[E]vidence obtained or gathered inside a house is subject to the exclusionary rule when there has been an unlawful governmental intrusion under the Fourth Amendment. But if the evidence were subsequently obtained or gathered outside the house, exclusion is not appropriate if there existed probable cause to arrest the defendant or if the defendant was not illegally or wrongfully detained, as assessed by information known to the police when arriving at a home. On the other hand, if probable cause is lacking or if a detention is otherwise unlawful or wrongful, the fruits of the search or arrest must be suppressed when they bear a sufficiently close relationship to the underlying illegality.” Hammerlund, 337 Mich App at 612-613.

In Hammerlund, the “defendant never stepped outside or beyond the entrance of her house and was arrested inside of her home. Although, ostensibly, [the officer] did not intentionally or deliberately enter the home, it is quite clear that he intended to arrest defendant at her home without a warrant by engaging in a deliberate effort to draw her near the door where he could physically grab her and pull her out of the house. And it was [the officer’s] actions that set into motion the events that led to defendant’s arrest inside the home. Under these circumstances, . . . [the officer] exhibited deliberate disregard for defendant’s Fourth Amendment rights,” and “the deterrent value of exclusion [was] strong and outweigh[ed] the resulting cost to society” related to excluding evidence of criminal wrongdoing. Hammerlund, 337 Mich App at 609, 614-615 (concluding that the officer did not have probable cause to arrest defendant, thus the arrest violated the Fourth Amendment, further concluding that the evidence obtained following the illegal arrest must be suppressed under the exclusionary rule because the “detention was otherwise unlawful or wrongful”).

“The good-faith exception as it exists encourages officers to seek approval from magistrates, who have the responsibility to determine whether the officer’s allegations establish probable cause and, if so, to issue a warrant comporting in form with the requirements of the Fourth Amendment.” People v Hughes (On Remand), 339 Mich App 99, 115 (2021) (quotation marks and citation omitted). “Allowing admission of the illegally obtained evidence in this case [cell-phone data evidence of an armed robbery that was not authorized by the warrant but rather obtained following a search that was conducted at the request of the prosecutor] would upend this framework . . . because officers would have no incentive to seek a warrant. Suppressing the evidence, on the other hand, will encourage officers to seek review of the legality of a search by a neutral magistrate before the search is conducted and will therefore deter future Fourth Amendment violations in cases where the law is unsettled.” Id. at 115.

The exclusionary rule does not apply “to civil enforcement proceedings that effectuate local zoning and nuisance ordinances and seek only prospective, injunctive relief.” Long Lake Twp v Maxon, ___ Mich ___, ___ (2024). The purpose of the exclusionary rule “is to deter misconduct that gives rise to constitutional violations[.]” Id. at ___. “[A]pplication of the exclusionary rule involves weighing the costs and benefits in each particular case.” Id. at ___ (quotation marks and citation omitted). “Ultimately, reviewing courts must consider whether the rule’s deterrence benefits outweigh the substantial social costs inherent in precluding consideration of reliable, probative evidence.” Id. at ___ (quotation marks and citation omitted). In Maxon, the township hired a contractor to take aerial photographs and video of the defendants’ property by using a flying drone after neighboring residents complained that the defendants were storing excessive junk on their property. Id. at ___. Subsequently, the township brought a lawsuit alleging that the defendants’ use of their property—“storing excessive amounts of salvaged material on their property”—violated its zoning and nuisance ordinances. Id. at ___. “The Township relied on the photographs and video taken from the aerial drone to support its case.” Id. at ___. In response, the defendants “brought a pretrial motion to exclude the photographs and video from use in the civil action, arguing that they were the product of an unreasonable search in violation of the United States and Michigan Constitutions.” Id. at ___.

On appeal, the Michigan Supreme Court weighed the costs and benefits of applying the exclusionary rule to civil proceedings to enforce zoning and nuisance ordinances. Id. at ___. With respect to the costs, the Court concluded that “[i]ncreasing the difficulty of or causing delays in the Township’s ability to prove nuisance would damage the interests of the Long Lake Township community as reflected in its local ordinances.” Id. at ___ (declining to suppress aerial photographs and video because suppression required that the Court ignore “important evidence” of an “ongoing violation” and “ongoing illegal activity”). Turning to the benefits, the Maxon Court reasoned:

Excluding the photographs and video captured from the drone may indeed deter the Township and other municipal and state officials from using drones in an intrusive and potentially unconstitutional manner. But the deterrence would be minimal. For one, the exclusionary rule is intended to deter future law enforcement misconduct. While we do not totally foreclose the possibility that some other government action may be of such an aggressive nature that a court may conclude that it is appropriate to apply the exclusionary rule to a related proceeding, the facts presented in this case fall far short of such behavior. Under these facts, it is unreasonable to believe that excluding the photographs and video would deter future misconduct by law enforcement or any other actor in any way. Further, the deterrent function is strongest where the unlawful conduct would result in a criminal penalty.” Id. at ___ (cleaned up) (observing that the case involved a civil infraction—not criminal or quasi-criminal proceedings—and the township only sought prospective injunctive relief—not a criminal penalty).

The Maxon Court concluded that applying the exclusionary rule would be “a serious cost” because it “would prevent the Township from effectuating its nuisance and zoning ordinances.” Id. at ___. Further, “[i]t would do so for little benefit given that exclusion of the photographs and video . . . would not deter future misconduct by law enforcement officers or their adjuncts, proxies, or agents.” Id. at ___. According to the Court, “[t]he exclusionary rule was not intended to operate in this arena and application of the rule . . . would serve no valuable function.”Id. at ___(quotation marks and citation omitted). Accordingly, the Court held that “the costs of applying the exclusionary rule would outweigh the benefits.” Id. at ___ (“declin[ing] to address whether the use of an aerial drone under the circumstances presented here is an unreasonable search in violation of the United States or Michigan Constitutions”).