3.34 Executing the Search Warrant
Michigan’s “knock-and-announce” statute is set out in MCL 780.656 :
“The officer to whom a warrant is directed, or any person assisting him [or her], may break any outer or inner door or window of a house or building, or anything therein, in order to execute the warrant, if, after notice of his [or her] authority and purpose, he [or she] is refused admittance, or when necessary to liberate himself [or herself] or any person assisting him [or her] in execution of the warrant.”
“The knock-and-announce statute requires that police executing a search warrant give notice of their authority and purpose and be refused entry before forcing their way in.” People v Fetterley , 229 Mich App 511, 521 (1998). Although it is known as the “knock-and-announce” rule, “[n]either case law nor statute requires that the police physically knock on the door; rather, they need only give proper notice to the occupants of their authority and purpose.” Id . at 524. “Police must allow a reasonable time for the occupants to answer the door following the announcement.” Id . at 521.
The exclusionary rule does not apply to violations of the knock-and-announce statute because violation of MCL 780.656 is unrelated to the seizure of a person’s property pursuant to a valid search warrant. Hudson v Michigan , 547 US 586, 594, 599-600 (2006).
B. Required Actions Upon Seizure of Property
MCL 780.655(1) sets out the procedures to be followed after property is seized during the execution of a search warrant:
“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.”
“[A] copy of the affidavit becomes part of the ‘copy of the warrant’ that must be provided or left pursuant to MCL 780.655 [.]” People v Garvin , 235 Mich App 90, 99 (1999). “However, a failure by law enforcement officers to comply with the statutory requirement to attach a copy of the affidavit to the copy of the warrant provided or left does not require suppression of evidence seized pursuant to the warrant.” Id . See also MCL 780.654(3) , which permits a magistrate to order the suppression of an affidavit in circumstances necessitating the protection of an investigation or the privacy or safety of a victim or witness:
“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.”
Additionally, the officer must promptly file the tabulation with the judge or district court magistrate . MCL 780.655(2) provides:
“The officer shall file the tabulation promptly with the judge or district court magistrate. The tabulation may be suppressed by order of the judge or district court magistrate 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.”
After the execution of the warrant, seized property must be returned and disposed of in accordance with MCL 780.655(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 judge or district court 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.”
A failure to strictly comply with the requirements of MCL 780.655 does not by itself require suppression of seized evidence. In People v Sobczak-Obetts , 463 Mich 687, 712-713 (2001), the Supreme Court held that the trial court and Court of Appeals erred by applying the exclusionary rule to conduct that amounted to a technical violation of MCL 780.655 , i.e., an officer’s failure to provide a copy of the affidavit in support of the warrant to the defendant at the time of the search, because there was no discernible legislative intent that a violation of MCL 780.655 requires suppression, and because there was no police misconduct to necessitate application of the exclusionary rule, which is predicated on deterring such conduct.