3.23Contents of the Search Warrant

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.Description of Premises to be Searched

The United States and Michigan Constitutions require that a search warrant particularly describe the place to be searched. See US Const, Am IV (“no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched . . . .”) and Const 1963, art I, § 11 (“No warrant to search any place . . . shall issue without describing [it] . . . .”). See also MCL 780.654(1) (“[e]ach warrant shall designate and describe the house or building or other location or place to be searched . . . .”).

The place to be searched must be described with sufficient precision so as to exclude any and all other places. “[W]here a multi-unit dwelling is involved . . . he warrant must specify the particular sub-unit to be searched, unless the multi-unit character of the dwelling is not apparent and the police officers did not know and did not have reason to know of its multi-unit character.” People v Toodle, 155 Mich App 539, 545 (1986).

Although specific addresses should be used when available, an incorrect address will not always invalidate a search warrant. See People v Westra, 445 Mich 284, 285-286 (1994) (warrant not invalid even though the apartment street address and unit number were incorrect, because the police made a reasonable inquiry into the address before executing the search).

A warrant may be issued for a specific building or place to be searched for violations of the Michigan Penal Code pertaining to animals. MCL 750.54. Articles or instruments found to be designed for torturing or harming animals or causing animals to fight are required to be seized by the executing officer, if found. Id.

B.Description of the Person to be Searched, Searched For, and/or Seized

“A warrant may be issued to search for and seize a person who is the subject of either of the following:

(a) An arrest warrant for the apprehension of a person charged with a crime.

(b) A bench warrant issued in a criminal case.” MCL 780.652(2).

In order to issue a search warrant for a person, the affidavit must establish particularized probable cause to search the location “where the person . . . to be searched for and seized is situated.” MCL 780.651(1). Once issued, “[a] search warrant shall be directed to the sheriff or any peace officer, commanding the sheriff or peace officer to search the house, building, or other location or place, where the person . . . for which the sheriff or peace officer is required to search is believed to be concealed. Each warrant shall designate and describe the house or building or other location or place to be searched and the property or thing to be seized.” MCL 780.654(1).

Committee Tip:

MCL 780.654 requires particularized probable cause for the place and property to be searched. When the police are seeking a warrant to search for multiple objects, the magistrate/judge should verify that there is particularized probable cause for each place and property to be searched.

 

Although search warrants give authority to search the described premises and any specifically identified persons on the premises, it is sometimes unclear whether the warrant authorizes a search of persons who are present on the premises but who were not specifically identified in the search warrant.

MCL 780.654 requires particularized probable cause for the place and property to be searched, but it does not expressly provide legal requirements for a person to be searched. However, the United States Supreme Court has held that when a search warrant describes persons to be searched, it “must be supported by probable cause particularized with respect to that person.” Ybarra v Illinois, 444 US 85, 91 (1979) (warrant to search public bar and bartender did not extend to a Terry¹ pat-down search of bar patrons present on the premises because the patrons were not described or named in the warrant as persons known to purchase drugs at that location, and because there was no reasonable belief that patrons were armed or dangerous). But see People v Jackson, 188 Mich App 117, 121 (1990), where the Court of Appeals distinguished Ybarra and upheld a Terry pat-down search of a defendant who arrived at an alleged drug-house during the execution of a search warrant (“[Ybarra] involved an unjustified cursory search of patrons in a public bar, whereas this case deals with the search of an individual at a residence targeted for drug sales, which was conducted in light of various threats made against the searching officers”).

“The places and persons authorized to be searched by a warrant must be described sufficiently to identify them with reasonable certainty so that the object of the search is not left in the officer’s discretion.” People v Kaslowski, 239 Mich App 320, 323 (2000).

“[U]nless a search of a particularly described person is expressly authorized by a warrant, a full search of a person present on the premises subject to a warrant may not be based upon the warrant.” People v Stewart, 166 Mich App 263, 268 (1988). However, when a search of private premises pursuant to a warrant reveals controlled substances, police have probable cause to arrest and search incident to arrest occupants of the premises who were not named in the warrant. People v Arterberry, 431 Mich 381, 383-385 (1988). See also Michigan v Summers, 452 US 692, 705 (1981)² (a warrant to search a residence for contraband implicitly carries with it the limited authority to detain, but not search, occupants of the premises while a proper search of the home is conducted; once evidence to establish probable cause to arrest an occupant is found, that person’s arrest and search incident thereto is constitutionally permissible).

A person on the premises at the time of the execution of the warrant may be searched without a warrant if probable cause exists independently of the search warrant to search that particular person. People v Cook, 153 Mich App 89, 91-92 (1986). A search may also be made of a person, even though the search warrant does not specifically authorize the search of a person, if the affidavit in support of the search warrant establishes probable cause to support the search. People v Jones, 162 Mich App 675, 677-678 (1987).

A “search warrant [which] merely described ‘[t]he person, place or thing to be searched’ as the ‘Cheboygan County Jail’” and “provided no guidance about whose blood should be drawn,” was “plainly invalid” because “[t]he warrant did not identify defendant, and it ostensibly authorized a blood draw from any inmate at the Cheboygan County Jail.” People v Brcic, 342 Mich App 271, 275, 278 (2022). “The fact that the application adequately described the ‘things to be seized’ does not save the warrant from its facial invalidity.” Id. at 279 (cleaned up). Although “a facially invalid search warrant may be saved by incorporated documents, . . . appropriate words of incorporation must direct the officers executing a search warrant to refer to an affidavit for guidance and not merely state an affidavit was used to establish probable cause.” Id. at 279 (quotation marks and citation omitted). “[A] warrant does not incorporate a supporting affidavit when it merely states that the affidavit establishes probable cause.” Id. at 280 (quotation marks and citation omitted). “‘[A]ppropriate words of incorporation’ are limited to phrases that reflect the magistrate’s explicit intention to incorporate an affidavit or other supporting document for the purpose of providing particularity in describing the place to be searched and the items to be seized under the authority of a search warrant.” Id. at 282. The Brcic Court noted that “the search warrant at issue [did] not direct the executing officer to refer to the affidavit” and “made no affirmative or explicit references to the affidavit.” Id. at 280. Accordingly, the Court held that “the information provided in the affidavit [could not] be used to save the plainly invalid search warrant from its lack of particularity as to the place to be searched and the items to be seized.” Id. at 282.

C.Description of Property to be Seized

General searches are prohibited under the Fourth Amendment of the United States Constitution, which requires warrants to “particularly describ[e] the . . . things to be seized[,]” and Const 1963, art 1, § 11, which provides that “[n]o warrant to . . . seize any . . . things shall issue without describing them[.]” See also MCL 780.654 (“[e]ach warrant shall designate and describe the . . . property or thing to be seized”), and People v Collins, 438 Mich 8, 37-38 (1991) (“the warrant must set forth, with particularity, the items to be seized”).

“Under both federal law and Michigan law, the purpose of the particularization requirement in the description of items to be seized is to provide reasonable guidance to the executing officers and to prevent their exercise of undirected discretion in determining what is subject to seizure.” People v Fetterley, 229 Mich App 511, 543 (1998).

“The degree of specificity required depends upon the circumstances and types of items involved.” People v Zuccarini, 172 Mich App 11, 15 (1988).

1.Descriptions Sufficient

•Descriptions in a warrant of “all money and property acquired through the trafficking of narcotics,” and “ledgers, records or paperwork showing trafficking in narcotics,” were sufficiently particular because the executing officers’ discretion in determining what was subject to seizure was limited to items relating to drug trafficking. People v Zuccarini, 172 Mich App 11, 15-16 (1988).

•Descriptions in warrants of “equipment or written documentation used in the reproduction or storage of the activities and day-to-day operations of the [search location]” “further qualified by [a] reference to the drug trafficking and prostitution activities that were thought to take place there” described with sufficient particularity the items to be seized because they provided reasonable guidance to the officers performing the search. People v Martin, 271 Mich App 280, 304-305 (2006).

•A search warrant authorizing the seizure of “any evidence of homicide” met the particularity requirement because the executing officers were limited to searching only for “items that might reasonably be considered ‘evidence of homicide[,]’” and because “[a] general description, such as ‘evidence of homicide,’ is not overly broad if probable cause exists to allow such breadth.” People v Unger, 278 Mich App 210, 245-246 (2008).

2.Descriptions Insufficient

•A warrant referring to stolen property of a certain type is insufficient if that property is common, particularly if additional details are available. Wheeler v City of Lansing, 660 F3d 931, 941-943 (CA 6, 2011).³ In Wheeler, police officers were issued a warrant to search the plaintiff’s apartment for personal property pursuant to an investigation of a series of home invasions. Id. at 934-935. The property to be seized was identified in the warrant as including “shotguns, long guns, computer and stereo equipment, cameras, DVD players, video game systems, big screen televisions, necklaces, rings, other jewelry, coin collections, music equipment, and car stereo equipment.” Id. at 935. The United States Court of Appeals for the Sixth Circuit found that this description “provid[ed] no basis to distinguish the stolen items from [the plaintiff’s] own personal property.” Id. at 941. Although the police reports of the break-ins identified “the brand and dimensions of the televisions, the brand of the camera and Playstation and the exact amount of cash reported as stolen,” two of the three cameras seized were not of the same brand as those identified as stolen. Id. The Court emphasized that the Fourth Amendment does not require “every single fact known” to be stated, but the affidavit supporting the warrant should provide “additional details, if they are available, to help distinguish between contraband and legally possessed property.” Id. at 942.