3.22 Initiating the Search Warrant Process1
The first step to the issuance of a search warrant is the preparation and filing of an affidavit. The affidavit is the document that sets forth the grounds for issuing the search warrant, as well as the factual averments from which a finding of probable cause may be made by the court. See MCL 780.651(1). For detailed discussion of the affidavit, see Section 3.27. Following the filing of an affidavit, a neutral and detached magistrate must examine the affidavit and determine whether there is probable cause to support the issuance of the search warrant. See id.; People v Payne, 424 Mich 475, 482-483 (1985).
The principal statutes concerning search warrants are MCL 780.651–MCL 780.658, and are discussed in more detail below. For a summary of the search warrant process, see the Michigan Judicial Institute’s checklist describing the process for issuing a search warrant and the checklist describing the process for electronically issuing a search warrant.
A.Drafting and Typing the Documents
The affidavit and search warrant can be drafted by either: (1) the prosecuting official, which may include assistant attorneys general, assistant prosecuting attorneys, or attorneys for the city, village, or township; or (2) the applicable law enforcement agency. Preferably, the affidavit and warrant should be typed on SCAO Form MC 231, Affidavit for Search Warrant, which contains instructions on its reverse side.
B.Signature of Prosecuting Official
The signature of a prosecuting official is not legally necessary to issue a search warrant based on an affidavit. MCL 600.8511(g); People v Brooks, 75 Mich App 448, 450 (1977).2
Committee Tip:
The signature of the prosecutor is not required, but if there are issues regarding the warrant or affidavit, the judge or district court magistrate should tell the police officer that it should be reviewed by the prosecutor.
Although a prosecuting official’s signature is not legally necessary to issue a search warrant, SCAO Form MC 231, Affidavit and Search Warrant, contains a rectangular box in the lower left corner for the signature of a reviewing prosecuting official to accommodate local practice.
”Probable cause means that there is a substantial basis for inferring a fair probability that contraband or evidence of a crime will be found in a particular place.” People v Armstrong, ___ Mich ___, ___ (2025) (quotation marks and citation omitted). See also United States v Grubbs, 547 US 90 (2006). Probable cause is discussed in detail in Section 3.25.
D.Neutral and Detached Magistrate
A magistrate who issues a search warrant must be “neutral and detached,” a requirement rooted in both the United States and Michigan Constitutions. Shadwick v City of Tampa, 407 US 345, 350 (1972); People v Payne, 424 Mich 475, 482-483 (1985); Const 1963, art 3, § 2.
Committee Tip:
It is important to maintain neutrality. For example, if either the affidavit or search warrant is defective, the magistrate/judge can tell the police officer that there is a problem with it and can state what the problem is (e.g., insufficient factual basis to establish probable cause). Some judges are of the opinion that they should not tell the police officer how to fix the defect, while other judges are of the opinion that they may indicate what would be required in order for them to sign it. One approach is to refer the police officer to the prosecutor for review of the affidavit/search warrant.
“The probable cause determination must be made by a person whose loyalty is to the judiciary alone, unfettered by professional commitment, and therefore loyalty, to the law enforcement arm of the executive branch.” Payne, 424 Mich at 483 (magistrate who was also a court officer and a sworn member of the sheriff’s department could not issue search warrants). See also People v Lowenstein, 118 Mich App 475, 486 (1982) (magistrate who previously had prosecuted and had been sued by the defendant was not neutral and detached). But see People v Tejeda (On Remand), 192 Mich App 635, 638 (1992) (police officers waiting in magistrate’s chambers for a phone call to provide them with additional information to complete the affidavit does not necessarily mean magistrate has injected himself or herself into the investigatory process).
A magistrate must disqualify himself or herself from authorizing warrants in the following situations:
“‘[A magistrate] associated in any way with the prosecution of alleged offenders, because of his allegiance to law enforcement, cannot be allowed to be placed in a position requiring the impartial judgment necessary to shield the citizen from unwarranted intrusions into his privacy.’ . . . In other words, an otherwise duly appointed magistrate who just happens to be connected with law enforcement may not constitutionally issue warrants. . . . Next, the magistrate (or judge) must disqualify himself if he had a pecuniary interest in the outcome. . . . A judge must also disqualify himself when one of the parties happens to be his client. . . . He must also disqualify himself where a party happens to be a relative.” Lowenstein, 118 Mich App at 483-484 (citations omitted).
E.Review of Decision to Issue Search Warrant
In reviewing the issuance of a search warrant, the reviewing court must determine whether a reasonably cautious person could have concluded that there was a substantial basis for finding probable cause. People v Russo, 439 Mich 584, 603 (1992). The reviewing court must afford deference to the magistrate’s decision and “insure that there is a substantial basis for the magistrate’s conclusion that there is a ‘fair probability that contraband or evidence of a crime will be found in a particular place.’” Id. at 604, quoting Illinois v Gates, 462 US 213, 238 (1983). See also People v Armstrong, ___ Mich ___, ___ (2025) (“[p]robable cause means that there is a substantial basis for inferring a fair probability that contraband or evidence of a crime will be found in a particular place”) (quotation marks and citation omitted), and United States v Ventresca, 380 US 102, 108 (1965), where the United States Supreme Court stated:
“[A]ffidavits for search warrants . . . must be tested and interpreted by magistrates and courts in a commonsense and realistic fashion. They are normally drafted by nonlawyers in the midst and haste of a criminal investigation. Technical requirements of elaborate specificity once exacted under common law pleadings have no proper place in this area. A grudging or negative attitude by reviewing courts toward warrants will tend to discourage police officers from submitting their evidence to a judicial officer before acting.”
The following SCAO-approved forms address the issuance of a search warrant:
•SCAO Form MC 231, Affidavit and Search Warrant
•SCAO Form MC 231a, Affidavit for Search Warrant (continuation)