- The state Legislature has given police power to search
your home without telling you why.
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- Two new laws, which took effect Monday as part of anti-terror
efforts, also shield from public scrutiny the reasons for police searches.
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- 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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