                                                                       Michigan Supreme Court
                                                                       Lansing, Michigan 48909
_____________________________________________________________________________________________
                                                               Chief Justice                  Justices
                                                               Maura D. Corrigan              Michael F. Cavanagh



Opinion
                                                                                              Elizabeth A. Weaver
                                                                                              Marilyn Kelly
                                                                                              Clifford W. Taylor
                                                                                              Robert P. Young, Jr.
                                                                                              Stephen J. Markman
____________________________________________________________________________________________________________________________

                                                                                   FILED JUNE 20, 2003





               PEOPLE OF THE STATE OF MICHIGAN,


                       Plaintiff-Appellant,


               v                                                                              No. 120437


               CHRISTOPHER LAMAR HAWKINS,


                       Defendant-Appellee.


               __________________________________

               PEOPLE OF THE STATE OF MICHIGAN,


                       Plaintiff-Appellant,


               v                                                                              No. 121698


               MICHAEL BRANDON SCHERF,


                       Defendant-Appellee.



               __________________________________

               BEFORE THE ENTIRE BENCH


               YOUNG, J.


                       We granted leave to appeal in these cases to consider

whether the lower courts properly applied the exclusionary


rule to evidence seized pursuant to (1) a search warrant that


was issued in violation of MCL 780.653 and (2) a bench warrant


that was issued in violation of MCR 3.606(A). 


      Because we conclude that neither the statute nor the


court rule contemplates application of the exclusionary rule,


we   reverse   in      both    cases.            In   People    v    Hawkins   (see


unpublished opinion per curiam of the Court of Appeals, issued


September 28, 2001 [Docket No. 230839]), we hold that evidence


of firearms and cocaine seized pursuant to a search warrant


should not have been suppressed on the ground that the warrant


was issued in violation of the affidavit requirements of MCL


780.653(b).    In People v Scherf (see 251 Mich App 410; 651


NW2d 77 [2002]), we hold that evidence of marijuana seized


from defendant following his arrest should not have been


suppressed on the ground that the bench warrant pursuant to


which he was arrested was issued in violation of the affidavit


requirements of MCR 3.606(A).



                  I.    FACTUAL 1   AND   PROCEDURAL BACKGROUND


                              A.    PEOPLE   V   HAWKINS


      Detective     Todd      Butler       of     the   Grand       Rapids   Police



      1
      These cases have not yet been tried. Our statement of

facts is derived from the preliminary examination and motion

hearing transcripts and from the documentation contained in

the lower court records. 


                                           2

Department received tips from two informants that illegal


controlled substances were being sold from a residence located


at 921 Humbolt, S.E., in Grand Rapids.        On the basis of the


information provided by these sources, Butler sought a search


warrant to search the residence. Butler’s affidavit set forth


the following facts in support of the issuance of the warrant:


          1. Your affiant received information from an

     informant on 10/14/99 that the resident of 921

     Humbolt S.E. was involved in the sale of narcotics.

     The informant stated the residence [sic] is selling

     the controlled substance crack cocaine.         The

     informant described the resident and seller of the

     controlled substance as “Chris,” B/M, approx. 20,

     5'8", 170 [lbs], medium build/complexion, short

     hair.


          2. Your affiant met with a reliable and

     credible informant on 11/3/99.   Your affiant was

     advised that the informant had observed the

     controlled substance cocaine available for sale

     from the residence within the past 36 hours.


          3. Your affiant was advised by the informant

     the entry door to the suspects [sic] apartment has

     been reinforced to delay a police entry. 


     On November 3, 1999, a judge of the 61st District Court


issued the requested warrant, and the residence was searched


the same day.   During the search, police seized two stolen


firearms,   approximately   20   grams   of   cocaine,   and   other


contraband. Defendant, who was not present during the search,


was stopped by police while driving his vehicle.         Defendant


was then arrested and later bound over for trial on several





                                 3

charges.2


      Defendant sought suppression of the evidence seized in


the   execution    of    the        search    warrant,    arguing    that   the


affidavit in support of the warrant was constitutionally


deficient in that it did not support a finding of probable


cause, the information it contained was stale, and it did not


clearly reveal whether one or two informants had supplied the


information.       Defendant          additionally    contended      that   the


affidavit did not meet the requirements of MCL 780.653(B)


because     it   did    not    include        information    concerning     the


credibility of the unnamed informants or the reliability of


the information they supplied.


      The circuit court granted defendant’s motion to suppress


the evidence and dismissed the case on the grounds that the


affidavit was both constitutionally deficient and in violation


of    MCL   780.653.          The    court     declined     the   prosecutor’s


invitation to apply the federal “good-faith exception,” under


which the Fourth Amendment exclusionary rule is not applicable


to evidence seized by officers acting in reasonable reliance



      2
      Defendant was charged with possession with intent to

deliver less than 50 grams of cocaine, MCL 333.7401(2)(a)(iv);

maintaining a drug house, MCL 333.7405(1)(d); possession of a

firearm by a felon, MCL 750.224f; driving with a suspended

license, MCL 257.904(3)(b); and two counts of receiving and

concealing a stolen firearm, MCL 750.535b.       Additionally,

defendant was charged with being a second-time drug offender,

MCL 333.7413(2), and a fourth-time felony offender, MCL

769.12. 


                                         4

on a warrant that is subsequently adjudged constitutionally


deficient.3


       On appeal, the Court of Appeals affirmed the circuit


court’s order to suppress evidence on the sole basis that the


affidavit supporting the search warrant did not meet the


requirements of MCL 780.653.                         Slip op at 3.           The panel


concluded that People v Sloan, 450 Mich 160; 538 NW2d 380


(1995), in which this Court held that evidence obtained under


a   search       warrant   issued      in    violation           of   §   653    must   be


suppressed, was dispositive.                Slip op at 2.             Accordingly, the


panel declined to address the constitutionality of the warrant


or the prosecution’s argument that the good-faith exception


was applicable.         Id. at 3.


       We granted the prosecution’s application for leave to


appeal      to   this   Court,       limited         to    the    issue   whether       the


exclusionary rule applies to a violation of § 653.                              466 Mich


860 (2002). 


                                B.    PEOPLE     V   SCHERF


       In    a     prior    case,       defendant              pleaded       guilty      of


manufacturing with intent to deliver between five and forty­

five       kilograms       of    marijuana                in     violation       of     MCL


333.7401(2)(D)(ii) and was sentenced to probation.                              Defendant



       3
      See Arizona v Evans, 514 US 1; 115 S Ct 1185; 131 L Ed

2d 34 (1995); United States v Leon, 468 US 897; 104 S Ct 3405;

82 L Ed 2d 677 (1984).


                                            5

allegedly    moved      out   of    Michigan   without   permission     and


thereafter failed to report to his probation officer in


violation of two of the terms of his probation. Consequently,


defendant’s probation officer filed a standard form petition


requesting that a bench warrant be issued for his arrest. The


petition contained the following statements:


          Petitioner requests that a bench warrant be

     issued and Michael Brandon Scherf be arrested and

     held in contempt of court for the following

     reason(s): 


          Violation of Rule Number 3: The defendant has

     failed to report as ordered and his whereabouts are

     unknown.   Violation of Rule Number 4: Failure to

     notify agent of change of address.


The petition contained the statement, “I declare that the


statements above are true to the best of my information,


knowledge, and belief,” and was signed by the probation


officer.      The district court issued the requested bench


warrant.


     Subsequently,        police     were   interviewing    defendant    in


connection with an unrelated larceny complaint when they


discovered,       via   the   Law   Enforcement    Information     Network


(LEIN),     the    outstanding      bench   warrant   for   his    arrest.


Defendant was arrested pursuant to the warrant.                   During a


search incident to the arrest, police seized several grams of


marijuana from defendant’s person.             Thereafter, defendant was


charged with possession of marijuana in violation of MCL



                                       6

333.7403(2)(d). 


     Defendant sought suppression of evidence of the marijuana


on the ground that the bench warrant petition was technically


deficient in that it was not supported by affidavits as


required by MCR 3.606(A), which governs contempt offenses


committed outside the immediate presence of the court.             The


prosecutor conceded that MCR 3.606(A) was violated because no


affidavit was submitted in support of the probation officer’s


petition.    The prosecutor argued, however, that the district


court division of the Isabella County Trial Court should apply


the federal “good-faith exception” to the exclusionary rule.


The district court division denied defendant’s motion, holding


that the bench warrant petition was confirmed by oath or


affirmation and was therefore properly issued.         Additionally,


the district court division noted that it found Arizona v


Evans, 514 US 1; 115 S Ct 1185; 131 L Ed 2d 34 (1995), which


reaffirmed    and   applied   the   good-faith   exception,   to    be


persuasive authority.


     Defendant appealed, and the circuit court reversed the


district court division’s order, granted defendant’s motion to


suppress the marijuana evidence, and dismissed the case.           The


court held that although the failure to provide an affidavit


with the bench warrant petition was merely “technical,” it


rendered    the   warrant   invalid.     The   court   rejected    the



                                    7

prosecutor’s     argument   that   the    good-faith     exception   was


applicable, stating on the record that the exception was not


recognized in Michigan.


     The prosecutor sought leave to appeal to the Court of


Appeals, asserting that the good-faith exception should be


applied under the circumstances.             The Court granted the


prosecutor’s     application    and     affirmed   the   circuit   court


division’s order.     251 Mich App 410.      The majority4 noted that


the bench warrant petition “was not supported by an affidavit


as required by MCR 3.606," id. at 411, and that “it is


undisputed that defendant’s arrest, and the resultant search


of defendant and seizure of evidence, were based on an invalid


bench warrant and, therefore, the arrest and consequential


search were unlawful,” id. at 415.            The majority indicated


that it would have applied the good-faith exception to the


exclusionary rule and reversed the circuit court division’s


decision if it were not obligated under MCR 7.215(I)(1) to


follow People v Hill, 192 Mich App 54; 480 NW2d 594 (1991), in


which another panel of the Court specifically declined to


recognize the good-faith exception to the exclusionary rule.5


215 Mich App 415-416.       



     4
         Judge Jessica R. Cooper concurred in the result only.

     5
      The Court subsequently declined to convene a special

panel to resolve the potential conflict with Hill, supra.

People v Scherf, 251 Mich App 805 (2002).


                                   8

       This Court granted the prosecutor’s application for leave


to appeal the judgment of the Court of Appeals.                         467 Mich 856


(2002).



                             II.    STANDARD    OF   REVIEW


       Questions        of   law   relevant       to     a    motion    to   suppress


evidence are reviewed de novo.                  People v Hamilton, 465 Mich


526, 529; 638 NW2d 92 (2002); People v Stevens (After Remand),


460 Mich 626, 631; 597 NW2d 53 (1999).6


       We must determine in these cases whether suppression of


evidence is required when MCL 780.653 or MCR 3.606(A) has been


violated.         Where      a   state    statute        is    involved,      “whether


suppression        is    appropriate       is     a     question       of    statutory


interpretation and thus one of legislative intent.”                           People v


Sobczak-Obetts, 463 Mich 687, 694; 625 NW2d 764 (2001),


quoting Stevens, supra at 644, quoting People v Wood, 450 Mich


399,       408;   538   NW2d     351     (1995)       (BOYLE ,   J.,    concurring).


Similarly, “[t]he interpretation of a court rule is a question


of law and is reviewed de novo.”                Hinkle v Wayne Co Clerk, 467


Mich 337, 340; 654 NW2d 315 (2002); see also People v Petit,


466 Mich 624, 627; 648 NW2d 193 (2002).





       6
           See also People v Hudson, 465 Mich 932 (2001).


                                           9

                            III.     ANALYSIS


                           A.    INTRODUCTION


      First and foremost, it is important to understand what is


not before this Court in deciding the issues presented in


these cases.     We are concerned solely with application of the


exclusionary rule to a statutory violation (People v Hawkins)


and to a court rule violation (People v Scherf). The judgment


of the Court of Appeals in Hawkins was based exclusively on


the   conceded    violation     of    MCL   780.653,     and   the   Court


specifically declined to address the constitutional validity


of the search warrant affidavit or the good-faith exception to


the constitutional exclusionary rule.            Likewise, in Scherf we


are not concerned with the constitutional validity of the


bench warrant or of the potential application of the good­

faith exception.      Although the Court of Appeals majority in


Scherf    indicated   a   willingness       to   apply   the   good-faith


exception in order to avoid suppression of the evidence for


the conceded violation of MCR 3.606(A), application of that


exception would have been wholly premature, given that neither


the circuit court division nor the Court of Appeals panel had


found a constitutional violation in the first instance.7




      7
      Moreover, defendant Scherf did not preserve for our

review any argument that the affidavit in support of the

issuance of the bench warrant was constitutionally deficient.

Rather, his sole argument in support of his motion to suppress

was that the affidavit did not meet the technical requirements

of MCR 3.606(A). 


                                     10

     With   that    in    mind,     we   must   determine     whether   the


statutory and court rule violations in these cases warrant


suppression of the evidence. 


                         B.    THE EXCLUSIONARY RULE


     The exclusionary rule is a judicially created remedy that


originated as a means to protect the Fourth Amendment right of


citizens to be free from unreasonable searches and seizures.


See Stevens, supra at 634-635; see also Weeks v United States,


232 US 383; 34 S Ct 341; 58 L Ed 652 (1914), overruled on


other grounds in Elkins v United States, 364 US 206; 80 S Ct


1437; 4 L Ed 2d 1669 (1960); Adams v New York, 192 US 585; 24


S Ct 372; 48 L Ed 575 (1904); Boyd v United States, 116 US


616; 6 S Ct 524; 29 L Ed 746 (1886).             The exclusionary rule,


modified    by     several       exceptions,8     generally     bars    the


introduction     into         evidence     of   materials     seized    and


observations made during an unconstitutional search. Stevens,


supra at 634, 636.       However, application of the exclusionary



     8
      For example, the “ good-faith exception,” which has been

asserted by the prosecutors in the cases at bar, permits

admission of evidence seized by police officers in reasonable

reliance on a constitutionally defective search warrant. See

Arizona, supra; Leon, supra.       As noted, because of the

procedural posture of the instant cases, we do not reach the

constitutionality of the warrants at issue and, consequently,

we do not address the applicability of the good-faith

exception to a violation of Michigan’s counterpart to the

Fourth Amendment, Const 1963, art 1, § 11. We note that leave

has recently been granted in People v Goldston, 467 Mich 938

(2003), in which this Court will consider whether to adopt and

apply a good-faith exception to the exclusionary rule. 


                                     11

rule is not constitutionally mandated, and


     [t]he question whether the exclusionary rule’s

     remedy is appropriate in a particular context [is]

     regarded as an issue separate from the question

     whether the Fourth Amendment rights of the party

     seeking to invoke the rule were violated by police

     conduct. [Illinois v Gates, 462 US 213, 223; 103 S

     Ct 2317; 76 L Ed 2d 527 (1983).]


     Moreover, the exclusionary rule is not designed to “make


whole” a citizen who has been subjected to an unconstitutional


search or seizure.     Rather, the aim of the rule is one of


police deterrence: 


          The wrong condemned by the [Fourth] Amendment

     is “fully accomplished” by the unlawful search or

     seizure itself . . . and the exclusionary rule is

     neither intended nor able to “cure the invasion of

     the defendant’s rights which he has already

     suffered.” . . . The rule thus operates as “a

     judicially created remedy designed to safeguard

     Fourth Amendment rights generally through its

     deterrent   effect,   rather   than    a   personal

     constitutional right of the party aggrieved.” . . .

     . [United States v Leon, 468 US 897, 906; 104 S Ct

     3407; 82 L Ed 2d 677 (1984).]


     Irrespective of the application of the exclusionary rule


in the context of a constitutional violation, the drastic


remedy of exclusion of evidence does not necessarily apply to


a statutory violation.9   Whether the exclusionary rule should



     9
      The exclusionary rule is particularly harsh in that it

is neither narrowly tailored nor discerning of the magnitude

of the error it is intended to deter. By taking no cognizance

of the effect of a police error upon a particular defendant,

or of the actual guilt or innocence of a defendant, the

exclusionary rule lacks proportionality.         Given these

characteristics, we decline to expand the use of this rule in

                                               (continued...)


                              12

be applied to evidence seized in violation of a statute is


purely a matter of legislative intent.                 Hamilton, supra at


534.


             “‘Because our judicial role precludes imposing

        different policy choices from those selected by the

        Legislature, our obligation is, by examining the

        statutory language, to discern the legislative

        intent that may reasonably be inferred from the

        words expressed in the statute. . . . When a

        statute   is  clear   and   unambiguous,   judicial

        construction or interpretation is unnecessary and

        therefore, precluded.’” [Sobczak-Obetts, supra at

        694-695 (citations omitted).]


        Likewise, whether suppression of evidence on the basis of


the violation of a court rule is appropriate is controlled by


the language of the rule.       “This Court applies principles of


statutory interpretation to the interpretation of court rules.


When the language is unambiguous, we must enforce the meaning


plainly     expressed,   and     judicial         construction   is   not


permitted.”     Hinkle, supra at 340. 



                         C.    PEOPLE   V   HAWKINS


        At issue in Hawkins is whether evidence seized from a


residence pursuant to a search warrant was properly suppressed


because the affidavit supporting the search warrant did not


meet the requirements of MCL 780.653 in Michigan’s search


warrant act, MCL 780.651 to 780.659. MCL 780.653 provides, in



     9
      (...continued)

the absence of an explicit constitutional or legislative

requirement.


                                   13

pertinent part:


          The magistrate’s finding of reasonable or

     probable cause shall be based upon all the facts

     related within the affidavit made before him or

     her. The affidavit may be based upon information

     supplied to the complainant by a named or unnamed

     person if the affidavit contains 1 of the

     following:


                          * * *


          (b) If the person is unnamed, affirmative

     allegations from which the magistrate may conclude

     that the person spoke with personal knowledge of

     the information and either that the unnamed person

     is credible or that the information is reliable.[10]


MCL 780.653(b) derives from the defunct “two-pronged test”


enunciated by the United States Supreme Court in Aguilar v


Texas, 378 US 108; 84 S Ct 1509; 12 L Ed 2d 723 (1964), and


Spinelli v United States, 393 US 410; 89 S Ct 584; 21 L Ed 2d


637 (1969), for determining whether an anonymous informant’s


tip established probable cause for issuance of a search


warrant.   See People v Sherbine, 421 Mich 502, 509; 364 NW2d


658 (1984).   Under the Aguilar-Spinelli formulation as it was



     10
      Section 1 of the search warrant act, MCL 780.651,

provides in part: 


          (1) When an affidavit is made on oath to

     a magistrate authorized to issue warrants in

     criminal cases, and the affidavit establishes

     grounds for issuing a warrant pursuant to this

     act, the magistrate, if he or she is satisfied

     that there is probable cause for the search,

     shall issue a warrant to search the house,

     building, or other location or place where the

     property or thing to be searched for and seized

     is situated. 


                              14

generally understood, a search warrant affidavit based on


information supplied by an anonymous informant was required to


contain   both    (1)   some   of    the   underlying    circumstances


evidencing the informant’s basis of knowledge and (2) facts


establishing either the veracity or the reliability of the


information.     See Gates, supra at 228-229; Sherbine, supra at


509.11


      This Court has previously held that a violation of the


affidavit requirements of MCL 780.653 warranted suppression of


evidence.   Sloan, supra; Sherbine, supra.              Because we are


unable to conclude that the Legislature intended application


of the exclusionary rule where the requirements of § 653 have


not been met, we overrule Sloan and Sherbine to the extent


that they so hold, and we conclude that defendant was not


entitled to suppression of evidence on the basis of the


statutory violation. 


      In Sherbine, this Court held that suppression of evidence



     11
      In Gates, the United States Supreme Court abandoned the

Aguilar-Spinelli two-pronged test in favor of a “totality of

the circumstances” approach.    Accordingly, in determining

whether a search warrant affidavit that is based on hearsay

information passes Fourth Amendment muster, 


     [t]he task of the issuing magistrate is simply to

     make a practical, common-sense decision whether,

     given all the circumstances set forth in the

     affidavit before him, . . . there is a fair

     probability that contraband or evidence of a crime

     will be found in a particular place. [Gates, supra

     at 238.] 


                                    15

was required where a search warrant affidavit violated a


previous version of § 65312 in that it did not make any showing


that an informant was a credible person and that he supplied


reliable information.13            Although this Court specifically


declined     to   decide     whether    satisfaction    of    the    federal


Aguilar-Spinelli test is required under Const 1963, art 1, §


11—that is, whether the requirements of § 653 are rooted in


Michigan’s constitutional search and seizure provision—this


Court     nevertheless     applied     the   exclusionary     rule   to   the


statutory violation.           In so doing, this Court failed to


examine     the   language    of   §   653   to   determine   whether     the


Legislature intended that such a drastic remedy be applied to


a violation of the statutory affidavit requirements.                 Rather,


this Court relied on People v Dixon, 392 Mich 691; 222 NW2d



     12
          In 1984, § 653 provided:


          The magistrate’s finding of reasonable or

     probable cause shall be based upon all the facts

     related within the affidavit made before him. The

     affidavit may be based upon reliable information

     supplied to the complainant from a credible person,

     named or unnamed, so long as the affidavit contains

     affirmative allegations that the person spoke with

     personal knowledge of the matters contained

     therein.

     13
      We concluded in Sherbine that preamendment § 653

expanded the Aguilar-Spinelli test to require that the

affidavit set forth facts showing both that a confidential

informant was credible and that the information was reliable.

Sherbine, supra at 509-510. The current version of § 653, as

amended by 1988 PA 80, makes clear that a showing of either

credibility or reliability is required. 


                                       16

749   (1974),   in    which   this    Court    similarly    applied   the


exclusionary rule to a statutory violation without performing


the   requisite      examination     of    legislative   intent.14     We


concluded, “The statutory violation here is clear.                    The


statute requires proof that the informant who supplied the


information be credible. The affidavit here failed to satisfy


this requirement. The evidence must therefore be suppressed.”


Sherbine, supra at 512.


      Justice Boyle dissented, opining that preamendment § 653


required a showing of either reliability or credibility, and


that this Court had misconstrued the statute as an expansion


of Aguilar.       Sherbine, 421 Mich 513-514.              Additionally,


Justice Boyle questioned whether suppression of the evidence


was required under the circumstances:            “I cannot conceive of


a reason why we should apply the exclusionary rule to the


supposed violation of a statute where the affidavit would pass




      14
      In Dixon, this Court held that suppression of evidence

was required, and reversed the defendant’s conviction on the

ground that a search of the defendant at a police station was

in derogation of his right to bail under MCL 780.581. This

Court cited decisions from California and Oregon courts

suppressing evidence for similar statutory violations, but

noted that in several of those decisions the courts

specifically found Fourth Amendment violations. Id. at 704,

n 18. Acknowledging that its decision was not premised on the

Fourth Amendment, id., this Court nevertheless concluded that

suppression of evidence obtained in derogation of the

statutory right to bail was required because “no other remedy

[was] as likely to assure its full enforcement,” id. at 705.



                                     17

constitutional muster under either Const 1963, art 1, § 11, or


US Const, Am IV . . . .”           Id. at 516.


     In Sloan, this Court held that a violation of a different


provision in the current version of § 653 required application


of the exclusionary rule.            A search warrant was issued to


obtain a blood test from the defendant, who was later charged


with manslaughter with a motor vehicle,15 operating a motor


vehicle while under the influence of intoxicating liquor


causing death,16 and felonious driving.17            The portion of § 653


at issue was the provision that “[t]he magistrate’s finding of


reasonable or probable cause shall be based on all the facts


related within the affidavit made before him or her.”                   This


Court     held   that   this   provision       was   violated   when    the


magistrate looked beyond the affidavit, to unrecorded oral


testimony of a police officer, in issuing the search warrant.18


Relying on Sherbine, this Court further concluded that the


blood     test   evidence    had    to   be   excluded   because   of    the




     15
          MCL 750.321.

     16
          MCL 257.625(4).

     17
          MCL 752.191.

     18
       As in Sherbine, the Sloan Court specifically stated that

it was not addressing whether the probable cause determination

was constitutionally defective. Sloan, supra at 183 n 17.

Indeed, this Court noted that the affidavit requirement of §

653 was not constitutionally mandated under either Const 1963,

art 1, § 11 or the Fourth Amendment. Id.


                                      18

statutory violation: 


          In Sherbine, we held that evidence obtained

     specifically in violation of MCL 780.653 . . . must

     be excluded.    The Legislature appears to have

     acquiesced in this particular construction of MCL

     780.653 . . . . While the Legislature subsequently

     amended MCL 780.653 . . . because it disagreed with

     portions of our statutory analysis provided in

     Sherbine, it is significant that the Legislature

     when instituting such amendments did not alter our

     holding that evidence obtained in violation of the

     statute must be excluded.     To change the law in

     that regard would have been an easy and convenient

     task for the Legislature. Neither the language in

     the amendments, nor the legislative history

     pertinent to the amendments provide a basis for

     concluding that a sanction other than exclusion is

     appropriate for the violation of MCL 780.653 . . .

     . Clearly, the Legislature shares our view that no

     remedy other than exclusion is as likely to assure

     the full enforcement of all of the requirements

     under MCL 780.653 . . .—a statute specifically

     designed by the Legislature to implement the

     constitutional mandate for probable cause under

     Const 1963, art 1, § 11.     [Sloan, supra at 183­
     184.] 


     Justice Boyle, joined by Justices Riley and Weaver,


dissented, arguing that the statute was complied with and


that, in any event, a violation of § 653 did not require


application of the exclusionary rule:


         Application of the exclusionary rule to any

    technical violation of our search warrant statute

    that may have occurred in the present case is

    unwarranted. Particularly where the magistrate is a

    sitting judge, as are virtually all magistrates in

    this state, I cannot conclude that the risk of

    relying on after-the-fact allegations are [sic] so

    substantial that we must suppress evidence.     The

    exclusionary rule is intended to serve a deterrent

    purpose, and loses any useful force and effect when

    applied to technical errors that do not rise to the

    level of negligent or wilful conduct, serving then


                             19

    only to deprive the trier of fact of relevant and

    probative evidence.    As explained by the United

    States Supreme Court in Michigan v Tucker, 417 US

    433, 446-447; 94 S Ct 2357; 41 L Ed 2d 182 (1974):


                                 * * *


         “The deterrent purpose of the exclusionary

    rule necessarily assumes that the police have

    engaged in willful, or at the very least negligent,

    conduct which has deprived the defendant of some

    right. By refusing to admit evidence gained as a

    result of such conduct, the courts hope to instill

    in those particular investigating officers, or in

    their future counterparts, a greater degree of care

    toward the rights of an accused.         Where the

    official action was pursued in complete good faith,

    however, the deterrence rationale loses much of its

    force.”   [Sloan,   supra   at   200   (BOYLE , J.,

    dissenting).]


Justice   Boyle   additionally    criticized   the   majority’s


invocation of the “legislative acquiescence” doctrine:


          The    majority’s    assertion    of    legislative

     acquiescence in the decision in Sherbine . . . to use of

     the exclusionary rule to suppress evidence obtained in

     alleged violation of the statute before us is wholly

     mistaken.      In  Sherbine,   this   Court’s   majority

     interpreted the former version of the statute as if it

     imposed a more restrictive standard than the Fourth

     Amendment and suppressed evidence on the basis of that

     consideration. The swift reaction of the Legislature

     was to amend MCL 780.653 . . . to make it clear that the

     Court was incorrect in concluding that what had occurred

     was a statutory violation. The Legislature had no need

     to say what should not be excluded; it relied on the

     Court’s word that were it clear that the Legislature had

     authorized the warrant, suppression would not be

     ordered.


          Acting   on   our  representation,   the   amended

     legislation tracked the Fourth Amendment. Because “our

     holding that evidence obtained in violation of the

     statute must be excluded” . . . was wholly derived from

     our narrow reading of MCL 780.653 . . . , the

     legislative amendment of the statute is not an


                                  20

       acquiescence in, but rather a repudiation of, the view

       in Sherbine that the evidence should be excluded.

       [Sloan, supra at 202-203 (BOYLE , J., dissenting).] 


       We agree with Justice Boyle and once again reaffirm that


where there is no determination that a statutory violation


constitutes     an      error   of     constitutional       dimensions,


application of the exclusionary rule is inappropriate unless


the plain language of the statute indicates a legislative


intent that the rule be applied.              Hamilton, supra at 534;


Sobczak-Obetts, supra at 694.         Moreover, we reject the Sloan


Court’s conclusion that the Legislature’s silence constituted


agreement with this Court’s application of the exclusionary


rule   in   Sherbine.      As   we   have     repeatedly    stated,   the


“legislative     acquiescence"             principle   of     statutory


construction has been squarely rejected by this Court because


it reflects a critical misapprehension of the legislative


process. See Robertson v DaimlerChrysler Corp, 465 Mich 732,


760 n 15; 641 NW2d 567 (2002); Nawrocki v Macomb Co Rd Comm,


463 Mich 143, 177-178 n 33; 615 NW2d 702 (2000).                Rather,


“Michigan courts [must] determine the Legislature’s intent


from its words, not from its silence.”            Donajkowski v Alpena


Power Co, 460 Mich 243, 261; 596 NW2d 574 (1999).


       The dissent asserts that “the majority [has] imposed its


own policy on the Legislature . . . .”                  Post at 10. 


Respectfully, we disagree and believe that it is not this



                                     21

majority but the Sherbine and Sloan majorities that imposed


their own policy choices on the Legislature with respect to


the application of the exclusionary rule to a violation of §


653.   Citing nothing in the text of the statute, the Sherbine


Court simply declared, without further analysis, that because


the statute was violated, “[t]he evidence must . . . be


suppressed.”     Sherbine, supra at 512.         Similarly, the Sloan


majority opined that “no remedy other than exclusion is as


likely    to   assure     the    full    enforcement   of    all   of   the


requirements under MCL 780.653 . . . .”           Sloan, supra at 184.


       The dissent purports to apply a “contextual analysis” of


§   653   in   reaching    the    conclusion    that   the    Legislature


intended the exclusionary rule to apply to a violation of


that statute.     Yet, as the dissenters readily admit, the text


of § 653 is entirely silent in this regard.                  Post at 2-3,


generally.      Clearly, there is no principled basis for the


contention that this Court’s injection of the exclusionary


rule in Sherbine and Sloan is grounded in the statutory text.


       The dissent attempts to draw a distinction between


legislative silence and reenactment of a statute following


judicial interpretation.          While we have no reason to contest


that the “reenactment doctrine” can sometimes be a useful


tool for determining legislative intent where the statutory


language is ambiguous, such a tool of construction may not be



                                        22

utilized to subordinate the plain language of a statute.


This Court’s constitutional charge to interpret the laws does


not end merely because the Legislature reenacts a statute.19


In the absence of a clear indication that the Legislature


intended to either adopt or repudiate this Court’s prior


construction, there is no reason to subordinate our primary


principle   of   construction–to   ascertain   the   Legislature’s


intent by first examining the statute’s language–to the


reenactment rule.20



     19
      Taken to its logical conclusion, application of the

reenactment doctrine under circumstances such as those present

in the case at bar would undoubtedly lead to results never

anticipated or intended by the Legislature.      For example,

suppose that the Legislature amends a statutory code to make

all pronouns gender-neutral, but otherwise reenacts the code

as originally written.    It would be neither accurate nor

reasonable to presume, as the dissent would have us do, that

the Legislature intended to adopt in toto every appellate

decision construing or applying the code.

     20
      Even the United States Supreme Court has acknowledged

that there has been no stable, consistent formulation of this

amorphous doctrine. Helvering v Griffiths, 318 US 371, 396;

63 S Ct 636; 87 L Ed 843 (1943).          Under the broadest

formulation of the reenactment doctrine, there is no reason

why only judicial interpretations of statutes should be

incorporated by implication upon reenactment of a statute.

Indeed, even administrative interpretations of statutes have

been recognized as binding. See United States v Safety Car

Heating & Lighting Co, 297 US 88, 95; 56 S Ct 353; 80 L Ed 500

(1936).


     Our point is not that the reenactment doctrine, properly

limited and applied, is without value as a statutory

construction   aid,   but   that   it  cannot   be   employed

indiscriminately and without recognition of the fact that its

more expansive versions impose an unreasonable burden on the

                                               (continued...)


                               23

     The Legislature has stated its views on the construction


of its statutes, in part by providing that all words and


phrases that are not terms of art21 be given their “common and



     20
      (...continued)

Legislature to affirmatively scan our appellate casebooks to

discern   judicial  constructions   of   statutes  that   the

Legislature desires for entirely other reasons to amend.

Applying the reenactment rule here would, in our view, be the

effective equivalent of imposing an affirmative duty on the

Legislature to keep abreast of all binding judicial

pronouncements involving the construction of statutes and to

revise those statutes to repudiate any judicial construction

with which it disagrees.      For similar reasons, we have

rejected precisely such a duty in other contexts. See, e.g.,

Donajkowski, supra at 261-262.


     To   apply   the   reenactment   doctrine   under   these

circumstances would not only likely fail to give effect to

legislative intent, but would also presumably violate

separation of powers principles. See Grabow, Congressional

silence and the search for legislative intent: A venture into

“speculative unrealites,” 64 BUL R 737, 759-761 (1984).

Accordingly, before we ignore the plain meaning of the text of

a statute, we reject formulations of the reenactment doctrine

involving circumstances that fail to demonstrate the

Legislature's conscious consideration of a judicial decision,

coupled with some compelling indication that the Legislature

intended to accept or reject that interpretation.       As is

illustrated by Justice Boyle’s dissent in Sloan, supra,

discussed at pp 22-23, it is a perilous exercise to attempt to

discern legislative intent from the Legislature’s silence,

even when a statutory amendment responds to some portion of a

judicial decision. See Sloan, supra at 202-203. 

     21
      We note that in the case of a term of art, application

of the “reenactment rule” would generally be appropriate

because such a term by definition carries with it the

construction accorded it by the courts. See People v Law, 459

Mich 419, 425 n 8; 591 NW2d 20 (1999). In contrast, in this

case we are confronted with the amendment of a statute

following the imposition of a judicially created remedy that

is grounded nowhere in the text of the statute.           Our

dissenting colleagues opine that “the Legislature could have

                                              (continued...)


                              24

approved” meanings.         MCL 8.3a.      Such is consistent with our


most fundamental principle of construction that there is no


room    for   judicial     interpretation     when   the   Legislature’s


intent      can   be   ascertained   from    the   statute’s   plain   and


unambiguous language.         See Stanton v Battle Creek, 466 Mich


611, 615; 647 NW2d 508 (2002).              Accordingly, we decline to


apply the “reenactment rule” when the Legislature’s intent is


evidenced by the plain        language of the statute and there is


no clear indication of any intent to adopt or repudiate this


Court’s prior construction.


       Nothing in the plain language of § 653 provides us with


a sound basis for concluding that the Legislature intended


that noncompliance with its affidavit requirements, standing


alone, justifies application of the exclusionary rule to


evidence obtained by police in reliance on a search warrant.22



       21
       (...continued)

easily modified the applicability of the exclusionary rule

when enacting 1988 PA 80,” post at 6-7, and that therefore the

Legislature must have intended to adopt, sub silentio, the

exclusionary rule. However, an equally plausible conclusion

is that, because the Legislature could easily have modified

the statute to expressly provide for the application of the

exclusionary rule, it must have intended to reject this

Court’s decision in Sherbine. This precisely illustrates one

of the reasons that the “legislative acquiescence” doctrine is

an untrustworthy indicator of legislative intent, as well as

why the “reenactment rule” should not be applied as an aid in

interpreting legislative silence.

       22
      Any error concerning the search warrant in this case

rests squarely on the shoulders of the district court judge,

                                              (continued...)


                                     25

Moreover,     application     of      the   exclusionary       rule   is


particularly inappropriate under the circumstances of this


case, where the objective of the rule—to sanction police


misconduct as a means of deterrence—would not be served.23


See Sobczak-Obetts, supra at 712.            Because we applied the


exclusionary rule to the statutory violations at issue in


Sherbine    and     Sloan   without      performing      the   requisite


examination    of   legislative    intent,    we   are    compelled   to


overrule those decisions to the extent that they conflict


with today’s holding.24



     22
      (...continued)

whose duty it is to ensure that warrants are issued in

compliance with state and federal law. There is no indication

in the record that the officer who applied for the search

warrant, or the officers who executed the warrant, acted

improperly. 

     23
      Indeed, we note that the Legislature has specifically

provided for a sanction in the case of misconduct in the

execution or procurement of a search warrant. See MCL 780.657

(“[a]ny person who in executing a search warrant, wilfully

exceeds his authority or exercises it with unnecessary

severity, shall be fined not more than $1,000.00 or imprisoned

not more than 1 year”); MCL 780.658 (“[a]ny person who

maliciously and without probable cause procures a search

warrant to be issued and executed shall be fined not more than

$1,000.00 or imprisoned not more than 1 year”).       That the

Legislature has elected to deter police misconduct in the

manner indicated by MCL 780.657 and MCL 780.658 further

evidences the lack of any legislative intent that the

exclusionary rule be applied under the circumstances of this

case. 

     24
      Our dissenting colleagues charge us with ignoring this

Court’s prohibition-era decisions in People v Knopka, 220 Mich

540; 190 NW 731 (1922), People v Moten, 233 Mich 169; 206 NW

                                                (continued...)


                                   26

     Accordingly, we conclude that the Court of Appeals erred


in holding that suppression of the evidence was required as


a remedy for the violation of § 653 in this case.      Because


the Court of Appeals declined to address the prosecutor’s


additional arguments on appeal, we remand this matter to that


Court for further proceedings.


                     D.   People v Scherf


     The Court of Appeals held in Scherf that a bench warrant


issued in violation of a court rule was invalid and that


suppression   of   evidence   obtained   in   connection   with


defendant’s arrest pursuant to that warrant was therefore



     24
      (...continued)

506 (1925), People v Bules, 234 Mich 335; 207 NW 818 (1926),

and People v Galnt, 235 Mich 646; 209 NW 915 (1926), all of

which involved search warrant requirements as set forth in §

27 of Michigan’s “liquor law,” 1922 CL 7079(27).        As we

explained in Sobczak-Obetts, supra, Knopka involved a

violation of Const 1908, art 2, § 10, not merely a statutory

violation.    The Moten and Bules Courts applied, without

analysis, the Knopka exclusionary rule to purely statutory

search warrant violations. The Galnt Court, similarly to the

Knopka Court, expressly found a constitutional violation. The

Moten and Bules decisions, which conclusorily applied the

exclusionary rule without determining that there was any

constitutional violation, are distinguishable in any event

because they did not involve the search warrant statute at

issue. See Sobczak-Obetts, supra at 700 n 11. Moreover, as

we noted in Sobczak-Obetts, supra at 707, the statutory

violations in Moten, Bules, and Galnt pertained to the warrant

form; in such a case, “the resulting search may be

constitutionally defective.” (Emphasis in original.) As we

have taken pains in this opinion to make clear, we are

reviewing only the Court of Appeals application of the

exclusionary rule to the alleged violations of a statute and

a court rule, and we do not address any claims that the

warrants at issue were constitutionally insufficient. 


                              27

required.       We disagree. 


     MCR 3.606(A) provides:


          Initiation of Proceeding.    For a contempt

     committed outside the immediate view and presence

     of the court, on a proper showing on ex parte

     motion supported by affidavits, the court shall

     either


          (1) order the accused person to show cause, at

     a reasonable time specified in the order, why that

     person should not be punished for the alleged

     misconduct; or 


          (2) issue a bench warrant for the arrest of

     the person.


Nothing     in    the   wording   of   MCR   3.606(A)    provides      any


indication that the exclusionary rule should be applied to a


violation of its affidavit requirement.25               To engraft the


exclusionary rule—a harsh remedy designed to sanction and


deter police misconduct where it has resulted in a violation


of constitutional rights—onto the technical provisions of a


rule of court in this manner would extend the deterrent well


beyond    its    intended   application.      Indeed,     the   task    of


scrutinizing the police papers submitted in support of a


warrant for technical compliance with the law falls squarely


with the judicial officer.             In the absence of language




     25
      In light of the prosecutor’s concession of error, we

need not address whether the issuance of the bench warrant was

actually violative of the affidavit requirement of MCR

3.606(A).


                                   28

evincing an intent that suppression of evidence should follow


from the violation of MCR 3.606(A), we decline to infer one.



                           IV.   CONCLUSION


     The exclusionary rule was improperly applied to the


violations     of   the   statutory     and    court   rule   affidavit


requirements at issue in these cases.          We cannot conclude, on


the basis of the plain language of MCL 780.653, that the


Legislature intended that noncompliance with its terms should


result in suppression of evidence obtained by police acting


in reasonable and good-faith reliance on a search warrant.


Likewise, MCR 3.606(A) does not provide for suppression of


evidence on the basis of noncompliance with its affidavit


requirement, and we decline to infer an intent that the


exclusionary rule should apply under these circumstances. 


     In Hawkins, we reverse the judgment of the Court of


Appeals and remand to that Court for further proceedings.            In


Scherf, we reverse the judgment of the Court of Appeals and


remand the matter to the district court division for further


proceedings.    We do not retain jurisdiction. 


                                   Robert P. Young, Jr.

                                   Maura D. Corrigan

                                   Clifford W. Taylor

                                   Stephen J. Markman





                                  29

             S T A T E      O F   M I C H I G A N


                         SUPREME COURT





PEOPLE OF THE STATE OF MICHIGAN,


     Plaintiff-Appellant,


v                                                    No.   120437


CHRISTOPHER LAMAR HAWKINS,


     Defendant-Appellee.

____________________________________

PEOPLE OF THE STATE OF MICHIGAN,


     Plaintiff-Appellant,


v                                                     No.

                                                      121698


MICHAEL BRANDON SCHERF,


     Defendant-Appellee.




WEAVER, J. (concurring).


     I concur in the majority’s holding that the violations


of MCL 780.653(b) and MCR 3.606(A) do not require suppression


of the evidence seized in these cases.    I write separately to


note that I do not believe the reenactment rule can be relied


on in the present cases.     As explained by Justice Boyle in


her dissent in People v Sloan, 450 Mich 160, 202-203; 538


NW2d 380 (1995), in which I joined,

          The    [Sloan]    majority’s   assertion    of

     legislative acquiescence in the decision in

     Sherbine,[1] to use of the exclusionary rule to

     suppress evidence obtained in alleged violation of

     the statute before us is wholly mistaken.        In

     Sherbine, this Court’s majority interpreted the

     former version of the statute as if it imposed a

     more restrictive standard than the Fourth Amendment

     and suppressed evidence on the basis of that

     consideration.      The swift reaction of the

     Legislature was to amend MCL 750.653; MSA

     28.1259(3), to make it clear that the Court was

     incorrect in concluding that what had occurred was

     a statutory violation.      The Legislature had no

     need to say what should not be excluded; it relied

     on the Court’s word that were it clear that the

     Legislature had authorized the warrant, suppression

     would not be ordered.


          Acting on our representation, the amended

     legislation tracked the Fourth Amendment. Because

     “our holding that evidence obtained in violation of

     the statute must be excluded,” ante at 183

     (Cavanagh, J.), was wholly derived from our narrow

     reading of MCL 780.653; MSA 28.1259(3), the

     legislative amendment of the statute is not an

     acquiescence in, but rather a repudiation of, the

     view in Sherbine that the evidence should be

     excluded.


     However, while I do not believe the reenactment rule


should be relied on in the present cases for the reasons


outlined by Justice Boyle, my opinion should not be construed


to mean that the rule may not be relied on in other cases


where it is appropriate.


                                Elizabeth A. Weaver





     1
         People v Sherbine, 421 Mich 502; 364 NW2d 658 (1984).


                               2

               S T A T E         O F   M I C H I G A N


                            SUPREME COURT





PEOPLE OF THE STATE OF MICHIGAN,


      Plaintiff-Appellant,

v                                                           No. 120437

CHRISTOPHER LAMAR HAWKINS,

     Defendant-Appellee.
___________________________________

PEOPLE OF THE STATE OF MICHIGAN,

      Plaintiff-Appellant,

v                                                           No. 121698

MICHAEL BRANDON SCHERF,

     Defendant-Appellee.
___________________________________

CAVANAGH, J. (dissenting).

      Today the majority discounts decades of precedent in


order to adopt its preferred policy of limiting application


of the exclusionary rule. Because contextual interpretations


of   the   statute   and   the    court   rule   mandate   use   of   the


exclusionary rule, and because the task of altering our


state’s policy concerning statutory remedies belongs to the


Legislature, I must respectfully dissent. 


                             MCL 780.653

      Like the majority, I agree that a contextual analysis of


MCL 780.653 will determine the appropriate remedy for its


violation.     However, I depart from the majority’s analysis


insofar   as    it   neglects      material        rules    of   statutory


interpretation.      


      Since its enactment in 1966, MCL 780.653 has codified


the   requirement    that    search    warrants     issue    only   upon   a


finding of probable cause, giving form to the constitutional


protection against unreasonable searches and seizures.                 The


provision clarifies that information in support of a warrant


must be supplied by an individual who has personal knowledge


of the facts alleged.       MCL 780.653, as amended by 1988 PA 80,


provides: 


           The magistrate's finding of reasonable or

      probable cause shall be based upon all the facts

      related within the affidavit made before him or

      her. The affidavit may be based upon information

      supplied to the complainant by a named or unnamed

      person if the affidavit contains 1 of the

      following: 


           (a) If the person is named, affirmative

      allegations from which the magistrate may conclude

      that the person spoke with personal knowledge of

      the information. 


           (b) If the person is unnamed, affirmative

      allegations from which the magistrate may conclude

      that the person spoke with personal knowledge of

      the information and either that the unnamed person

      is credible or that the information is reliable. 

      Similarly to the federal and state constitutional


prohibition    against      the   issuance    of    a   warrant     without



                                      2

probable cause, the text of this subsection provides no


specific guidance about the requisite judicial response to


its    violation.              Statutory       construction     is,     therefore,


required.            In re MCI, 460 Mich 396; 596 NW2d 164 (1999).


Although the consequence of an infraction is not prescribed,


1966       PA    189    does     authorize       a   penalty    for     those     who


intentionally           exceed    their        authority    when      executing     a


warrant,         who    exercise     such       authority      with    unnecessary


severity, or who maliciously procure a warrant.                           See MCL


780.657,        780.658.1        While     I    agree   that    these    statutory


provisions must inform our understanding of MCL 780.653, I am


not persuaded that they mandate the result envisioned by the


majority. 


       As       an   initial     matter,       the   penalty    provisions      only


pertain to a small number of violations.                    Most violations of


1966 PA 189 are not caused by wilful misconduct.                           If the


criminal provisions are deemed the exclusive remedy for any



       1
           MCL 780.657 provides: 


            Any person who in executing a search warrant,

       wilfully exceeds his authority or exercises it with

       unnecessary severity, shall be fined not more than

       $1,000.00 or imprisoned not more than 1 year. 


       MCL 780.658 provides: 


            Any person who maliciously and without

       probable cause procures a search warrant to be

       issued and executed shall be fined not more than

       $1,000.00 or imprisoned not more than 1 year. 


                                            3

violation of this act, its directives would have no force.


Unlike the majority, I cannot conclude that the presence of


criminal penalties for rare incidents of extreme misconduct


indicates a legislative intent to displace the exclusionary


rule.    To so hold would assume the Legislature promulgated an


impotent (or ineffectual) statute.2     For this reason, I find


several other well-respected doctrines of interpretation more


compelling.


        Among them is the strong presumption that a high court’s


construction of a statute should be given a heightened stare


decisis effect.    As noted by the United States Supreme Court,


        [the] reluctance to overturn precedents derives in

        part from institutional concerns about the

        relationship of the Judiciary to Congress.      One

        reason that we give great weight to stare decisis

        in the area of statutory construction is that

        "Congress   is   free   to  change   this   Court's

        interpretation of its legislation.” Illinois Brick

        Co v Illinois, 431 US 720, 736[; 97 S Ct 2061; 52

        L Ed 2d 707] (1977).       We have overruled our

        precedents when the intervening development of the

        law has "removed or weakened the conceptual

        underpinnings from the prior decision, or where the

        later law has rendered the decision irreconcilable

        with competing legal doctrines or policies."

        Patterson v McLean Credit Union, 491 US 164, 173[;

        109 S Ct 2363; 105 L Ed 2d 132] (1989) (citations

        omitted).    Absent those changes or compelling

        evidence bearing on Congress' original intent, NLRB

        v Longshoremen, 473 US 61, 84[; 105 S Ct 3045; 87

        L Ed 2d 47] (1985), our system demands that we



     2
      See People v Sobczak-Obetts, 463 Mich 687, 713-716; 625

NW2d 764 (2001) (Cavanagh, J., dissenting); People v Stevens

(After Remand), 460 Mich 626, 648-666; 597 NW2d 53 (1999)

(Cavanagh, J., dissenting).


                                 4

     adhere to our prior interpretations of statutes.

     [Neal v United States, 516 US 284, 295; 116 S Ct

     763; 133 L Ed 2d 709 (1996) (emphasis added).]


     Because this Court shares a similar relationship with


the Michigan Legislature, I find no reason to reject this


Court’s precedent in People v Sloan, 450 Mich 160; 538 NW2d


380 (1995), or People v Sherbine, 421 Mich 502; 364 NW2d 658


(1984), which clarify that evidence obtained in violation of


MCL 780.653 must be suppressed.


     In Sherbine, this Court held that the exclusionary rule


is the proper remedy for a violation of MCL 780.653.               In


support, the Court cited People v Dixon, 392 Mich 691; 222


NW2d 749 (1974), People v Chartrand, 73 Mich App 645; 252


NW2d 569 (1977), and State v Russell, 293 Or 469; 650 P2d 79


(1982).   Sherbine, supra at 512 and ns 18-21. 


     Ten years later, this Court affirmed the application of


the exclusionary rule for violations of MCL 780.653 (§ 653)


in Sloan, supra.      In Sloan, this Court held that a magistrate


must base the probable-cause determination on the record


(i.e.,    an    affidavit   is   necessary;   sworn    testimony   is


insufficient), and that a violation of this statute requires


the exclusion of tainted evidence. The Court’s rationale was


based, in part, on the Legislature’s acquiescence to the


application      of   the   exclusionary   rule   as   expressed   in


Sherbine.      In 1988, the Legislature revised § 653 in response



                                   5

to    Sherbine,     overruling   by       legislative      enactment   the


informant- reliability standard.            In doing so, it approved


the use of the exclusionary rule to redress violations of §


653.


        Though one might be tempted to dismiss the authoritative


value of Sloan on the basis of its stated reliance on the now


disfavored doctrine of legislative acquiescence, a close


examination reveals the Court utilized a related—but quite


distinct—rule of interpretation, i.e., the reenactment rule.


If a legislature reenacts a statute without modifying a high


court’s     practical     construction      of    that     statute,    that


construction is implicitly adopted. See Singer, 28 Statutes


and     Statutory   Construction      (2000      rev),   Contemporaneous


Construction, § 49:09, pp 103-112.                The reenactment rule


differs from the legislative-acquiescence doctrine in that


the     former    canon   provides     “prima      facie    evidence     of


legislative intent” by the adoption, without modification, of


a statutory provision that had already received judicial


interpretation.      Id. at 107.      As articulated by the United


States Supreme Court, a legislature “is presumed to be aware


of an administrative or judicial interpretation of a statute


and to adopt that interpretation when it [reenacts] a statute


without change . . . .”      Lorillard, a Div of Loew’s Theatres,


Inc v Pons, 434 US 575, 580; 98 S Ct 866; 55 L Ed 2d 40



                                     6

(1978).     As I noted in Sloan, the Legislature could have


easily modified the applicability of the exclusionary rule


when enacting 1988 PA 80.         By altering the text to renounce


the informant rule modified in Sherbine, while reenacting the


remaining    text,   the    Legislature          indicated   its     detailed


knowledge    of   Sherbine       and    approved      the     use    of   the

exclusionary rule for violations of § 653.3

     Long     before       the    Legislature         incorporated        the

exclusionary rule into MCL 780.653, this Court adopted a


presumption in favor of utilizing the exclusionary rule for


statutory violations.        Over eighty years ago, in People v


Knopka, 220 Mich 540, 545; 190 NW 731 (1922), the Court


suppressed    evidence     obtained         by   warrant    issued    without




     3
      The majority’s attempt to diminish the value of the

reenactment doctrine is misguided. As noted above, the rule

merely provides prima facie evidence of legislative intent,

and a bill replacing male pronouns with neutral pronouns

throughout the code–as suggested in the majority opinion, ante

at 23 n 19–would not justify a strong presumption in favor of

its application because there would be no indication that the

Legislature thoughtfully familiarized itself with the

subsections modified. Application of the reenactment rule in

this case, by contrast, does shed light on the scope of the

Legislature’s familiarity with Sherbine, supra.


     Further, unlike the majority, I have more faith in the

Legislature’s ability to competently execute its duties. To

assume the Legislature would not familiarize itself with the

whole of a particular case when revising one subsection of the

code in response to that very case does not, as the majority

suggests, “violate separation of powers principles.” Ante at

24 n 20. Rather, reference to the reenactment rule under such

circumstances simply acknowledges legislative competency.


                                       7

probable cause:


            It not appearing that the search warrant was

       issued upon the constitutional and statutory

       showing of probable cause, it must be held that the

       evidence procured by it was inadmissible and should

       have been suppressed and that, with such evidence

       out, defendant should have been discharged.


       In    reaching            this    conclusion,         the   Court   focused


exclusively           on   the    statutes      establishing       search-warrant


requirements.          Three years later, in People v Moten, 233 Mich


169;   206       NW    506   (1925),          the    Court    again   applied    the


exclusionary rule to remedy a statutory violation, relying,


in part, on Knopka.               See also People v Bules, 234 Mich 335;


207 NW 818 (1926) (reversing a conviction on the basis of


evidence         obtained         in    violation       of    statutory    warrant


requirements); People v Galnt, 235 Mich 646; 209 NW 915


(1926) (discharging the defendant where evidence obtained in


violation of statute required suppression). 


       Although this Court has recently attempted to narrow the


import      of    Moten      and        its   progeny,       the   distinction    is


particularly inapposite here.                       In People v Sobczak-Obetts,


463 Mich 687; 625 NW2d 764 (2001), the majority distinguished


the    Moten-Bules-Galnt                 trilogy       because     each    analyzed


substantive warrant requirements, i.e., the sufficiency of a


warrant’s “form,” whereas the statute at issue in Sobczak-


Obetts concerned procedures relevant to warrant execution.




                                              8

See also People v Hamilton, 465 Mich 526; 638 NW2d 92


(2002)(holding that an absence of statutory authority did not


warrant    application       of    the    exclusionary        rule   where   the


statute was meant to protect the rights of autonomous local


governments); People v Stevens (After Remand), 460 Mich 626;


597 NW2d 53 (1999) (holding that failure to comply with the


knock-and- announce rule did not warrant application of the


exclusionary      rule).          However,      this   distinction      between


substantive and procedural interests collapses when applied


to defendant Hawkins, who challenged the warrant issued for


his arrest on substantive grounds, maintaining the affidavit


contained neither credible nor reliable allegations.                         The


trial court agreed: “The affidavit clearly does not conform


with Michigan statutory authority; namely, MCL 780.653(B).”


Regrettably, the majority today conflates substantive and


procedural concerns, ignores decades of precedent, and—in


spite     of     evidence         to     the     contrary—disregards         the


Legislature’s unambiguous approval of the application of the


exclusionary rule for violations of MCL 780.653.                     See 1988 PA


80.


        Until   the   tide   began       to    shift   with   Stevens    (After


Remand), the use of the exclusionary rule to remedy statutory


violations was well settled.                  By dismissing the import of


this Court’s precedent, including Moten, Bules, Sherbine,



                                         9

Sloan,   et    al.,    the   majority   has    imposed     a   policy-based


doctrine      that    requires   express      statements       to   authorize


application of the exclusionary rule.            Ante at 21.        This runs


afoul of the Legislature’s approval of the rule’s application


to MCL 780.653 as articulated in Sherbine.               1988 PA 80. 


     While I can appreciate the majority’s need to balance


important and competing interests, I take issue with its


attempt to ground the analysis in the text of MCL 780.653.


Moreover, shifting the focus to a “clear statement” policy


works a bait-and-switch on the Legislature.              Not only has the


majority imposed its own policy on the Legislature, it has


displaced the controlling interpretive standard—on which our


Legislature has relied—under the guise of strict textualism.


                               MCR 3.606(A)


     The majority concludes that the exclusionary rule is an


inappropriate remedy because the text of MCR 3.606(A) does


not specifically demand its application.              Ante at 25.       “When


called on to construe a court rule, this Court applies the


legal principles that govern the construction and application


of statutes. . . .           Accordingly, we begin with the plain


language of the court rule.”               Grievance Administrator v


Underwood,     462    Mich   188,   193-194;    612   NW2d      116   (2000).


Applied here, the doctrine clarifies our rule’s rigorous


demands.      MCR 3.606(A) provides:



                                     10

           Initiation of Proceeding.    For a contempt

      committed outside the immediate view and presence

      of the court, on a proper showing on ex parte

      motion supported by affidavits, the court shall

      either:


           (1) order the accused person to show cause, at

      a reasonable time specified in the order, why that

      person should not be punished for the alleged

      misconduct; or


           (2) issue a bench warrant for the arrest of

      the person.


      As required by this rule, before contempt proceedings


may be initiated for any conduct outside of the court’s


“immediate view,” a party must provide “a proper showing on


ex parte motion supported by affidavits . . . .”             A motion


alone    is   insufficient.     An   affidavit,     i.e.,   “a   signed


statement,” must be provided.        Once this requirement is met,


the court must either order the accused person to prove why


punishment should not be inflicted or issue a bench warrant.


        In the light of the potential peril, as well as the


substantive safeguards contained in MCR 3.606(A), I find it


particularly troublesome that the majority members suggest


such rules are mere “technical provisions.”           This assertion


ignores their function as guarantors of procedural rights.


MCR 3.606(A) threatens punishment solely on the basis of


exclusive communications between an adversarial party and the


court. The procedure authorizes the exercise of police power


by   judicial    officers,    which—contrary   to    the    majority’s



                                  11

implication—may not be used to detain an individual without


probable cause.      As an arm of the state, our actions must


respect the polity’s civil rights, and our court rules are


drafted to ensure that the exercise of judicial authority is


not arbitrary or unlawful.      To deem such rules “technical”


distorts the substance of the rules and the role of the


judiciary.


     Although the majority holds otherwise, the exclusionary


rule would be particularly appropriate in this instance.                As


a tool to prevent the abuse of state power, this Court


promulgated    the   court   rule    to    mark      the   boundaries   of


acceptable    judicial   conduct.4        If   the    exclusionary   rule


applied, magistrates and judges would surely take care to




     4
          The majority claims that application of the

exclusionary rule to MCL 780.653 or MCR 3.606(A) would not

further the purpose of either because “the aim of the rule is

one of police deterrence . . . .” Ante at 12. While I agree

that we suppress evidence in an attempt to prevent police

misconduct, the exclusionary rule is also utilized to ensure

compliance with the law at an institutional level. The ease

with which we lose sight of this goal is apparent in People

v Cartwright, 454 Mich 550; 563 NW2d 208 (1997), where we

equated “good police practice” with violations of the Fourth

Amendment: 


          While conceding that [the officer's] entry

     into the mobile home might have been good police

     practice,   the   district   court   held   that,

     nonetheless, it was not a proper search without a

     warrant. [Id. at 554.]


One wonders how it can be "good police practice" to violate

the Fourth Amendment. 


                                    12

confirm that warrants were issued on a proper showing of


probable cause.        Such proof is all the court rule requires.


                  THE EXCLUSIONARY RULE’S UTILITY


       I agree that the exclusionary rule wields significant


power, but only because it is the sole efficacious method by


which    to    protect    individuals       from   state   misconduct,   as


defined by our laws.           If any other method of enforcement


worked so well, it, too, would be deemed disproportionate and


heavy- handed.         Thus, our debate is not simply about which


remedy is appropriate, but how sacred we deem the right to be


free    from   unlawful     state    conduct.       Whether   codified   in


federal or state constitutions, statutes, or court rules, the


judicial branch          must enforce the laws that prescribe the


scope    of    state   power   and    protect      individuals   from    the


unreasonable exercise of that authority. 


        In the aftermath of September 11, 2001, as our nation


struggles to secure its boundaries while protecting our


freedoms, the role of the judiciary–charged with maintaining


the delicate balance between state authority and individual


liberty–becomes increasingly vital.                Our statutes and court


rules have been drafted to protect these freedoms.                Because


both the statute, MCL 780.653, and the court rule, MCR


3.606(A), would be without force but for the exclusionary


rule, and because this Court should avoid overruling sound



                                      13

precedent and imposing its policy upon the Legislature, I


must reject the majority’s analysis.


                           CONCLUSION


      Though cloaked in a strict Textualism garb, the majority


attempts to justify its decision on the basis of its own


policy considerations.     According to the majority, in the


absence of an express legislative statement indicating an


intention to invoke the exclusionary rule, the rule will not


be   applied.   However,   a   more    legitimate   analysis   would


require an inference in favor of its application.              In so


doing, it could be guaranteed that the well-settled and


authoritative interpretation of our statutes could be relied


upon, and that a statute’s purpose would be effectuated.


Moreover, without this tool, aggrieved individuals would have


no opportunity for redress.           For these reasons, I would


affirm the judgment of the Court of Appeals in Hawkins. 


      With regard to the proper remedy for a violation of MCR


3.606(A), I would also apply the exclusionary rule.       The text


of the court rule evinces an intention to impose substantive


procedural safeguards into the warrant-authorization process.


To effectuate this end, the exclusionary rule is required to


remedy violations of MCR 3.606(A). Therefore, I would affirm


the judgment of the Court of Appeals in Scherf.


                                 Michael F. Cavanagh

                                 Marilyn Kelly


                                14

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