Posted on 04/25/2002 1:52:14 PM PDT by Just another Joe
'Living in a police state'
By JOHN WISELY and STEPHEN W. HUBER,
April 24, 2002
The state Legislature has given police power to search your home without telling you why
Two new laws, which took effect Monday as part of anti-terror efforts, also shield from public scrutiny the reasons for police searches.
Defense lawyers and civil libertarians are outraged at the laws, which make search warrants and supporting documents such as affidavits non-public records.
"If you think the police did secretive work before, just wait," defense attorney William Cataldo said. "It gives more power to the ignorant and more power to those who would take your rights."
Defense lawyer Walter Piszczatowski said: "This is nuts, this is beyond nuts.
"What happened to the Fourth Amendment? We're living in a police state."
That means the public, the press, and in some cases even the person accused of the crime, can't know why the police entered a home without permission.
Under previous laws, the records were public, unless a judge ordered them sealed for a specific reason. In federal courts, that remains the case. But now, search warrants in state courts are automatically closed to public view.
"I think this is absolutely unconstitutional," said Dawn Phillips, a First Amendment lawyer with the Michigan Press Association. "We objected to it at the time. This thing passed like greased lightning."
The House portion of the bill passed unanimously and the Senate version passed 27-8. The chief sponsor of the bill in the state senate was Shirley Johnson (R-Royal Oak) while Bill Bullard (R-Highland Township) was a cosponsor. In the state House, Nancy Cassis (R-Novi) was among 20 sponsors.
The American Civil Liberties Union also objected to the law's change. ACLU spokeswoman Wendy Wagenheim said the group is reviewing the law.
Law enforcement supported the changes. Oakland County Prosecutor David Gorcyca said the laws protect victims, witnesses and confidential informants.
Gorcyca said the procedure for obtaining a search warrant didn't change, nor did the rights of the defendant to challenge a bad warrant or the ill-gotten gains of an illegal search.
"When affidavits are filed, previously they divulged a large portion of the investigation and where it was heading and that could hamper the investigation and the direction of the investigation," Gorcyca said.
"It doesn't mean you can circumvent the judicial process. All we're doing is suppressing the contents of the affidavit. It does prevent the public and the media from obtaining information during the investigation but it doesn't prevent the defendant and the defense attorney from challenging the search warrant."
Gorcyca cited drug conspiracy cases as those where witnesses are frequently in danger unless their identity is kept private during the investigation.
"In the drug world, witnesses are fearful all the time," he said. "Those are reluctant witnesses who are afraid to come forward and testify. In those cases, fear and intimidation is real. That's why grand juries are so vital. And this provides the same secrecy as a grand jury and does not impugn anyone's rights."
Civil libertarians say those goals can be met with a much narrower approach, like the one used in federal court.
"A judicial finding needs to be made on a case-by-case basis," said David Moran, a constitutional law professor at Wayne State University in Detroit.
When police are investigating a crime and they believe evidence is stored in someone's home, car or other private place, they must submit a sworn affidavit to the court spelling out their case.
A judge reviews the document, then decides if there is enough evidence to search without the owner's permission.
The Fourth Amendment to the U.S. Constitution requires "probable cause" to issue a warrant and notes they must be written "particularly describing the place to be searched and the persons or things to be seized."
The changes are contained in two new laws - public acts 112 and 128.
State Court administrator John Ferry Jr. spelled out the changes to courts across the state in a memo last Friday. Public act 112 makes "all search warrants, affidavits and tabulations in any court file or record retention system nonpublic," according to Ferry's memo.
The memo goes on to say that public act 128 "provides for suppression of a search warrant affidavit upon a showing that it is necessary to protect an ongoing investigation or the privacy or the safety of a victim or witness."
When contacted Tuesday for clarification on the memo, a spokeswoman for the state court administrator's office declined comment. Marcia McBrien said the laws could appear before the Supreme Court for interpretation and it would be improper for her to offer one in advance.
The new laws could also create headaches for court recordkeepers. In many courts, search warrants are filed along with the case file. It's unclear how clerks will keep the two separate.
The new law also affects the rights of people who are searched. According to a analysis of the law done in the House of Representatives, the state Court of Appeals ruled that affidavits be given along with a warrant at the time of a search.
The new law changes that.
"An officer executing a search is not required to give a copy of the affidavit to the person or leave a copy at the place from which the property was taken," according to Ferry's memo.
.
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And an update from April 25, 2002
Lawmakers defending secret warrants
By JOHN WISELY
April 25, 2002
Local legislators are defending two new laws that limit public access to court documents.
The laws, which took effect this week, stop the public from gaining access to search warrants and affidavits. It deems them nonpublic records.
Lawmakers - who unanimously voted for the measures in the Senate and House of Representatives - said the laws protect crime victims, informants and witnesses from criminals and the media.
But civil libertarians and First Amendment lawyers argue they invite police abuse and curtail public scrutiny.
State Sen. Bill Bullard, R-Highland Township, who co-sponsored one of the bills with Sen. Shirley Johnson, R-Royal Oak, said despite specific wording that makes the records "nonpublic," he believes affidavits still are subject to Michigan's Freedom of Information Act (FOIA). Johnson could not be reached for comment.
"FOIA trumps that," Bullard said Wednesday. "If we had wanted to amend FOIA, we would have done that."
But a Friday memo from State Court Administrator John Ferry Jr. to courts across the state makes no such distinction. The memo tells clerks that access to the records is restricted.
When an Oakland Press reporter sought a search warrant from a district court Tuesday, a clerk said "they can't be released" and handed over a copy of the memo about the new law.
The new law "makes all search warrants, affidavits and tabulations in any court file or record retention system nonpublic," according to the memo.
"How else is that to be interpreted?" said Dawn Phillips, a First Amendment lawyer with the Michigan Press Association. "People in law enforcement want to follow laws. If they are looking at that memo, they are not going to release those records."
The bills were part of an anti-terrorism package that passed the Legislature after the Sept. 11 attacks.
At issue are affidavits, the sworn information police submit to courts when they want to get permission to search someone's home. The information often includes the name of the person who has told police where the criminal or evidence can be found.
If a person's home is searched and he or she is charged with a crime, a defense lawyer can demand access to the information. If the government seeks to forfeit the person's property in a civil case, the file also would be opened.
But if no charges are brought, the new law doesn't spell out a way for the person who was searched to learn why the police searched the home.
Pontiac defense attorney Elbert Hatchett said the move is an expansion of a dubious process of sealing warrants.
"Unfortunately, that's been the case for some time," Hatchett said. "The officer asks for a search warrant and then asks the judge for a suppression order citing an on-going investigation. It's almost automatic. These courts and these legislators have always exalted the rights of police over the rights of the accused."
State Rep. Ruth Johnson (R-Holly) said the point of the law is to protect victims. She said judges still must approve warrants.
"Everything we do is a balancing act," she said. "The judge is the person that is entrusted to make sure it's done properly."
State Rep. Nancy Cassis (R-Novi), who cosponsored the bill in the House, said the provisions originated in a domestic violence package. Legislators were worried that attackers could learn where their victims were staying by getting the address from the affidavit.
"Believe me, if there were to occur abuse of this, I'm sure it would be relooked," Cassis said.
State Rep. Andrew Raczkowski (R-Farmington Hills) said closing the affidavits to public view protects victims from criminals and the media.
"On that affidavit, you also have information about the victim," Raczkowski said. "The media can look up that information and go straight to the victim or a criminal can do that."
The old "if you've got nothing to hide, you have nothing to worry about" has always been a bull***t argument. Constitutional rights shouldn't rest on whether you've got something or nothing to hide. Try telling that to someone who's just had their house torn apart by state agents and all their financial records, computers, etc. carted away.
The main point here is that if the state can hide the underlying reasons for getting a warrant in the first place, the standard of probable cause can very easily be diluted to "a cop's suspicion or hunch". Not that this doesn't already happen quite frequently, but if warrants and their supporting material are kept secret, it makes accountability harder and misapplication for warrants much easier.
As others have said above, if police can convince the judge that a warrant should be sealed to protect a sensitive on-going investigation, as is the current law, that may be appropriate, but an automatic, blanket extension of this to all warrants is indeed a large step toward a police state.
The Patriot Act allows federal agents, upon application to and approval by the judge, to not even inform you if your house, car, business is searched (for 6 months, which can be renewed every 6 months indefinitely). They don't have to tell you what they take or copy, or that they've been there at all. It's all to fight terror...and then drug dealers...and then it may be too time-consuming to get the judge's approval, so let's just make all warrants no-notice warrants, since it will allow law enforcement to act quickly to stop terrorists....then drug dealers...then gun owners...then people who post on conservative web sites....
It is indeed a slippery slope. But then, you've got nothing to hide...do you?
Cheers.
No, he doesn't. He's one of the carrion-eaters perched on the carcass of the American Dream.
He's with the thugs. ;^)
Better to not even be there. Better to take them from a distance. They're used to siege tactics, not someone who'll turn the game around on them.
I wish I knew about it earlier, since I talked to my state senator already today.
Sec. 4. (1) A search warrant shall be directed to the sheriff or any peace officer, commanding the sheriff or peace officer to search the house, building, or other location or place, where any property or other thing for which the sheriff or peace officer 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.
(2) The warrant shall either state the grounds or the probable or reasonable cause for its issuance or shall have attached to it a copy of the affidavit.
(3) Upon a showing that it is necessary to protect an ongoing investigation or the privacy or safety of a victim or witness, the magistrate may order that the affidavit be suppressed and not be given to the person whose property was seized or whose premises were searched until that person is charged with a crime or named as a claimant in a civil forfeiture proceeding involving evidence seized as a result of the search.
History: 1966, Act 189, Eff. Mar. 10, 1967 ;--Am. 2002, Act 112, Eff. Apr. 22, 2002 . ------------
780.655 Property seized upon search; tabulation; filing; custody; restoration to owner; disposition of other property.
Sec. 5. (1) 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 that were seized. The officer taking property or other things under the warrant shall 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. The officer is not required to give a copy of the affidavit to that person or to leave a copy of the affidavit at the place from which the property or thing was taken.
(2) The officer shall file the tabulation promptly with the court or magistrate. The tabulation may be suppressed by order of the court until the final disposition of the case unless otherwise ordered. The property and things that were seized shall be safely kept by the officer so long as necessary for the purpose of being produced or used as evidence in any trial.
(3) As soon as practicable, stolen or embezzled property shall be restored to the owner of the property. Other things seized under the warrant shall be disposed of under direction of the court or magistrate, except that money and other useful property shall be turned over to the state, county or municipality, the officers of which seized the property under the warrant. Money turned over to the state, county, or municipality shall be credited to the general fund of the state, county, or municipality.
History: 1966, Act 189, Eff. Mar. 10, 1967 ;--Am. 2002, Act 112, Eff. Apr. 22, 2002 .
Nope, not at all.
"Believe me, if there were to occur abuse of this, I'm sure it would be relooked," Cassis said."
This reminds me of my bro, who changes lanes then turns and looks. LOL!
In my opinion, such an occurrence is not only rare, but is always the result of poor intelligence, poor tactical planning, pressure from department hierarchy or just pathetic detective work. None of these are acceptable.
All I can tell you is that I was involved in over 300 search warrants and never entered the wrong home/apartment.
EODGUY
I don't care for this law that much, but it's not a patriot act either.
Public Act 112:...CRIMINAL PROCEDURE; Search and seizure; search warrant affidavits; revise procedures.
(Sen. S. Johnson)
Public Act 128:...CRIMINAL PROCEDURE; Search and seizure; search warrant affidavits; declare to be nonpublic information.
(Rep. S. Caul)
And whatever it means they were both "tie bar"
Have you ever heard of law enforcement officers following the law to the letter? I have and did.
As I've said previously, incompetent, intentionally criminal abuse of power or process by law enforcement should be dealt with swiftly and severely.
I won't waste bandwidth on an explanation of the seizure/forfeiture process, unless someone who wants to know the truth inquires.
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