'Living in a Police State'

April 24, 2002
The state Legislature has given police power to search your home without telling you why.

Two new laws, which took effect Monday as part of anti-terror efforts, also shield from public scrutiny the reasons for police searches.

Defense lawyers and civil libertarians are outraged at the laws, which make search warrants and supporting documents such as affidavits non-public records.

"If you think the police did secretive work before, just wait," defense attorney William Cataldo said. "It gives more power to the ignorant and more power to those who would take your rights."

Defense lawyer Walter Piszczatowski said: "This is nuts, this is beyond nuts.

"What happened to the Fourth Amendment? We're living in a police state."

That means the public, the press, and in some cases even the person accused of the crime, can't know why the police entered a home without permission.

Under previous laws, the records were public, unless a judge ordered them sealed for a specific reason. In federal courts, that remains the case. But now, search warrants in state courts are automatically closed to public view.

"I think this is absolutely unconstitutional," said Dawn Phillips, a First Amendment lawyer with the Michigan Press Association. "We objected to it at the time. This thing passed like greased lightning."

The House portion of the bill passed unanimously and the Senate version passed 27-8. The chief sponsor of the bill in the state senate was Shirley Johnson (R-Royal Oak) while Bill Bullard (R-Highland Township) was a cosponsor. In the state House, Nancy Cassis (R-Novi) was among 20 sponsors.

The American Civil Liberties Union also objected to the law's change. ACLU spokeswoman Wendy Wagenheim said the group is reviewing the law.

Law enforcement supported the changes. Oakland County Prosecutor David Gorcyca said the laws protect victims, witnesses and confidential informants.

Gorcyca said the procedure for obtaining a search warrant didn't change, nor did the rights of the defendant to challenge a bad warrant or the ill-gotten gains of an illegal search.

"When affidavits are filed, previously they divulged a large portion of the investigation and where it was heading and that could hamper the investigation and the direction of the investigation," Gorcyca said.

"It doesn't mean you can circumvent the judicial process. All we're doing is suppressing the contents of the affidavit. It does prevent the public and the media from obtaining information during the investigation but it doesn't prevent the defendant and the defense attorney from challenging the search warrant."

Gorcyca cited drug conspiracy cases as those where witnesses are frequently in danger unless their identity is kept private during the investigation.

"In the drug world, witnesses are fearful all the time," he said. "Those are reluctant witnesses who are afraid to come forward and testify. In those cases, fear and intimidation is real. That's why grand juries are so vital. And this provides the same secrecy as a grand jury and does not impugn anyone's rights."

Civil libertarians say those goals can be met with a much narrower approach, like the one used in federal court.

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

When police are investigating a crime and they believe evidence is stored in someone's home, car or other private place, they must submit a sworn affidavit to the court spelling out their case.

A judge reviews the document, then decides if there is enough evidence to search without the owner's permission.

The Fourth Amendment to the U.S. Constitution requires "probable cause" to issue a warrant and notes they must be written "particularly describing the place to be searched and the persons or things to be seized."

The changes are contained in two new laws - public acts 112 and 128.

State Court administrator John Ferry Jr. spelled out the changes to courts across the state in a memo last Friday. Public act 112 makes "all search warrants, affidavits and tabulations in any court file or record retention system nonpublic," according to Ferry's memo.

The memo goes on to say that public act 128 "provides for suppression of a search warrant affidavit upon a showing that it is necessary to protect an ongoing investigation or the privacy or the safety of a victim or witness."

When contacted Tuesday for clarification on the memo, a spokeswoman for the state court administrator's office declined comment. Marcia McBrien said the laws could appear before the Supreme Court for interpretation and it would be improper for her to offer one in advance.

The new laws could also create headaches for court recordkeepers. In many courts, search warrants are filed along with the case file. It's unclear how clerks will keep the two separate.

The new law also affects the rights of people who are searched. According to a analysis of the law done in the House of Representatives, the state Court of Appeals ruled that affidavits be given along with a warrant at the time of a search.

The new law changes that.

©The Oakland Press 2002