In A Police State
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
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
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
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.
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
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
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.
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.
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.
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.
judicial finding needs to be made on a case-by-case basis," said David
Moran, a constitutional law professor at Wayne State University in
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.