7.8Motion to Suppress Warrantless Search or Seizure

This section discusses warrantless search and seizure issues as they relate to juveniles. For a general and more comprehensive discussion of search and seizure issues, see the Michigan Judicial Institute’s Criminal Proceedings Benchbook, Vol. 1, Chapter 11. For information on the issuance of search warrants, see Criminal Proceedings Benchbook, Vol. 1, Chapter 3.

A.Application of Constitutional Protections to Juveniles

The federal and state constitutions prohibit unreasonable searches and seizures.US Const, Am IV; Const 1963, art 1, § 11. These constitutional provisions also apply to juveniles in situations in which the juvenile enjoys a reasonable expectation of privacy. See, e.g., New Jersey v TLO, 469 US 325, 337-338 (1985) (“A search of a child’s person or of a closed purse or other bag carried on her person, no less than a similar search carried out on an adult, is undoubtedly a severe violation of subjective expectations of privacy.”). A search “occurs when the government intrudes on an individual’s reasonable, or justifiable, expectation of privacy.” People v Chandler, ___ Mich App ___, ___ (2024) (quotation marks and citation omitted).

The reasonableness of a search or seizure is determined by balancing the governmental interest that justifies the intrusion against an individual’s right to be free of arbitrary police interference. Terry v Ohio, 392 US 1, 20-21 (1968). “In general, searches conducted without both a warrant and probable cause to believe evidence of wrongdoing might be located at the place searched are unreasonable per se.” Chandler, ___ Mich App at ___ (quotation marks and citation omitted). Indeed, “searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment—subject only to a few specifically established and well-delineated exceptions.” Id. at ___ (quotation marks and citation omitted).

“[I]n light of the voters’ intent to legalize marijuana usage and possession, the smell of marijuana, standing alone, no longer constitutes probable cause sufficient to support a search for contraband.” People v Armstrong, ___ Mich ___, ___ (2025). In People v Kazmierczak, 461 Mich 411 (2000), the Michigan Supreme Court held “that the smell of marijuana alone by a person qualified to know the odor may establish probable cause to search a motor vehicle, pursuant to the motor vehicle exception to the warrant requirement.” Armstrong, ___ Mich at ___, quoting Kazmierczak, 461 Mich at 413. However, “Kazmierczak’s holding is no longer good law in light of the passage of the MRTMA” in 2018.¹ Armstrong, ___ Mich at ___.“MCL 333.27955 provides a list of permissible acts for adults who are 21 years of age or older under the MRTMA, including possessing, using, purchasing, transporting, or processing 2.5 to 15 grams of marijuana.” Armstrong, ___ Mich at ___. “[N]ow that marijuana possession and use is generally legal, the odor of marijuana does not on its own supply a substantial basis for inferring a fair probability that contraband or evidence of illegal activity will be found in a particular place.” Id. at ___, citing Illinois v Gates, 462 US 213, 238 (1983). Going forward, “the appropriate rule is that the smell of marijuana is one factor that may play a role in the probable-cause determination.” Armstrong, ___ Mich at ___. “Other relevant inculpatory facts might include, for example, an officer’s observation of evidence suggesting intoxication or the presence of smoke.”² Id. at ___.

B.Issues With Warrantless Searches of Juveniles

1.Free and Voluntary Consent

“‘Consent searches, when voluntary, are an exception to the warrant requirement.’” People v Chandler, ___ Mich App ___, ___ (2024), quoting People v Frederick, 500 Mich 228, 242 (2017). To be valid, consent must be “unequivocal, specific, and freely and intelligently given.” Chandler, ___ Mich App at ___ (quotation marks and citation omitted). “Whether consent to a search was voluntary ‘turns on whether a reasonable person would, under the totality of the circumstances, feel able to choose whether to consent.’” Chandler, ___ Mich App at ___, quoting Frederick, 500 Mich at 242; see also People v Borchard-Ruhland, 460 Mich 278, 294 (1999) (“Whether consent to search is freely and voluntarily given is a question of fact based on an assessment of the totality of the circumstances.”). “[T]here is no requirement that consent must be verbally given.” United States v Hinojosa, 606 F3d 875, 882 (CA 6, 2010). “Consent to a search ‘may be in the form of words, gesture, or conduct.’” United States v Carter, 378 F3d 584, 587 (CA 6, 2004), quoting United States v Griffin, 530 F2d 739, 742 (CA 7, 1976).

Failure to object to a search does not constitute actual consent. People v Chowdhury, 285 Mich App 509, 525 (2009). In Chowdhury, 285 Mich App at 511, police officers administered preliminary breath tests (PBTs) to a group of underage individuals without first requesting consent. The Court of Appeals held that the defendant did not consent to the PBT (which constitutes a search for Fourth Amendment purposes) when he failed to object to the officer’s administration of the test. Id. at 525-526.

Police officers need not always inform persons of their right to refuse consent. Ohio v Robinette, 519 US 33, 39-40 (1996).

2.Parental Consent

“[C]onsent can be obtained from either ‘the individual whose property is searched or from a third party who possesses common authority over the premises.’” People v Chandler, ___ Mich App ___, ___ (2024), quoting Illinois v Rodriguez, 497 US 177, 181 (1990). “Common authority derives from joint access or control, and the belief that one has common authority must be reasonable.” Chandler, ___ Mich App at ___ (quotation marks omitted). Thus, if a police officer reasonably believes that a parent has joint access and control over a child’s bedroom, then that parent may validly consent to a search of the bedroom. People v Goforth, 222 Mich App 306, 315-316 (1997). The Goforth Court “observed the following non-exhaustive list of factors in considering whether someone had common authority: (1) ‘ownership of the house, or provision of or access to the living quarters’; (2) ‘the defendant’s failure to take steps to exclude others from his room’; (3) whether the area was used by others freely; and (4) entry into the room for services such as cleaning and laundry.” Chandler, ___ Mich App at ___, quoting Goforth, 222 Mich App at 314-316 (holding that “there is no Fourth Amendment violation where police officers conduct a search pursuant to the consent of a third party whom the officers reasonably believe to have common authority over the premises”).

3.Burden of Proof

The defendant has the burden of establishing his or her standing to challenge a search or seizure. People v Zahn, 234 Mich App 438, 446 (1999). A defendant has standing to challenge a search or seizure “if, under the totality of the circumstances, he [or she] has a subjective expectation of privacy in the object of the search or seizure and the expectation of privacy is one that society is prepared to recognize as reasonable.” Id. at 446. The burden is on the prosecution to show that a warrantless search or seizure challenged by a defendant was justified by a recognized exception to the warrant requirement. People v Galloway, 259 Mich App 634, 638 (2003).

“When a prosecutor seeks to rely upon consent to justify the lawfulness of a search, he has the burden of proving that the consent was, in fact, freely and voluntarily given.” People v Chandler, ___ Mich App ___, ___ (2024) (quotation marks and citation omitted). The prosecution must show by clear and positive evidence that the individual whose property was searched or a third party with common authority over the property consented to the search. People v Kaigler, 368 Mich 281, 294 (1962) (“consent must be proved by clear and positive testimony and there must be no duress or coercion, actual or implied”) (emphasis omitted); Illinois v Rodriguez, 497 US 177, 181 (1990). “This burden cannot be discharged by showing no more than acquiescence to a claim of lawful authority.” Chandler, ___ Mich App at ___ (quotation marks and citation omitted). “A search conducted in reliance upon a warrant cannot later be justified on the basis of consent if it turns out that the warrant was invalid.” Id. at ___ (quotation marks and citation omitted). “When a law enforcement officer claims authority to search a home under a warrant, he announces in effect that the occupant has no right to resist the search.” Id. at ___ (quotation marks and citation omitted) “The situation is instinct with coercion—albeit colorably lawful coercion.” Id. at ___ (quotation marks and citation omitted). “Where there is coercion there cannot be consent.” Id. at ___ (quotation marks and citation omitted).

C.Selected Types of Warrantless Searches

1.Searches That Take Place in a School

Searches that take place in schools may be properly conducted based on a level of suspicion less than probable cause. Courts have justified searches of students based on reasonable suspicion. The child’s interest in privacy is balanced against the substantial interest of teachers and administrators in maintaining discipline in the classroom and on school grounds. TLO, 469 US at 341-343. See also People v Ward, 62 Mich App 46, 50-51 (1975) (internal citations omitted):

“School officials stand in a unique position with respect to their students. They possess many of the powers and responsibilities of parents to enable them to control conduct in their schools. At times, the powers and responsibilities regarding discipline and the maintenance of an educational atmosphere may conflict with fundamental constitutional safeguards. A student cannot be subjected to unreasonable searches and seizures. On the other hand, the public interest in maintaining an effective system of education and the more immediate interest of a school official in protecting the well-being of the students entrusted to his [or her] supervision against the omnipresent dangers of drug abuse must be considered. In striking a balance, we adopt a ‘reasonable suspicion’ standard.”

“Reasonable suspicion entails something more than an inchoate or unparticularized suspicion or ‘hunch,’ but less than the level of suspicion required for probable cause.” People v Champion, 452 Mich 92, 98 (1996).

Searching a student’s bra and underwear for drugs without “any indication of danger to the students from the power of the drugs or their quantity, and any reason to suppose that [the student] was carrying [the drugs] in her underwear[,]” was constitutionally unreasonable and required reversal. Safford Unified School Dist #1 v Redding, 557 US 364, 376-377 (2009). In Safford, 557 US at 368-369, after searching the student’s outer clothing and backpack, the assistant principal then had the student’s bra and underwear searched based on information that she was carrying and distributing a forbidden prescription medicine and over-the-counter medications. Because the specific drugs for which the assistant principal was searching were common pain relievers and thus posed a limited threat to students, and because there was no reason to suspect that the student hid the drugs in her underwear, the United States Supreme Court concluded that “the content of the suspicion failed to match the degree of intrusion.” Id. at 375-376. The Court clarified that “the TLO[, 469 US at 337-338,] concern to limit a school search to reasonable scope requires the support of reasonable suspicion of danger or of resort to underwear for hiding evidence of wrongdoing before a search can reasonably make the quantum leap from outer clothes and backpacks to exposure of intimate parts. The meaning of such a search, and the degradation its subject may reasonably feel, place a search that intrusive in a category of its own demanding its own specific suspicions.” Safford, 557 US at 377.

The TLO Court did not address the issue of whether a public school student has a reasonable expectation of privacy in school lockers. TLO, 469 US at 337 n 5. In Michigan, this issue is addressed in MCL 380.1306. MCL 380.1306(1) states that “[a] pupil who uses a locker that is the property of a school district, local act school district, intermediate school district, or public school academy is presumed to have no expectation of privacy in that locker or that locker’s contents.”

School boards and boards of directors of public school academies must adopt a policy on searches of pupils’ lockers and locker contents. MCL 380.1306(2). Schools must provide pupils and their parents with copies of the policy. Id. Pursuant to a search policy, a public school principal or designee may search a pupil’s locker or a locker’s contents at any time. MCL 380.1306(3). “Any evidence obtained as a result of a search of a pupil’s locker or locker’s contents shall not be inadmissible in any court or administrative proceedings because the search violated this section, violated the policy under subsection (2), or because no policy was adopted.” MCL 380.1306(6).

The statute also provides for law enforcement assistance in conducting a search. MCL 380.1306(4) states:

“A law enforcement agency having jurisdiction over the school may assist school personnel in conducting a search of a pupil’s locker and the locker’s contents if that assistance is at the request of the school principal or his or her designee and the search is conducted in accordance with the policy under [MCL 380.1306](2).”

2.Searches of Juvenile Probationers

The Family Division may enter an order of disposition placing the juvenile “on probation, or under supervision in the juvenile’s own home or in the home of an adult who is related to the juvenile.” MCL 712A.18(1)(b).³ The court must order terms and conditions of probation “as the court determines necessary for the physical, mental, or moral well-being and behavior of the juvenile.” Id. 

Because the supervision of probationers is an exception to the general probable cause and warrant requirements, the search of a probationer may be justified on a showing of less than probable cause. People v Chandler, ___ Mich App ___, ___ (2024), citing Griffin v Wisconsin, 483 US 868, 875 (1987) (authorizing probation officers to search probationers when they are suspected of criminal activity); see also United States v Knights, 534 US 112, 118-119 (2001) (permitting a search based on a probation condition and reasonable suspicion). “States are permitted to infringe on a probationer’s privacy in ways that would otherwise be considered unconstitutional because the special needs of a probation system make the warrant requirement impracticable and justify replacement of the standard of probable cause by ‘reasonable grounds.” Chandler, ___ Mich App at ___ (quotation marks and citation omitted) (noting that the United States Supreme Court, in Griffin, 483 US at 876, opined that “a warrant requirement to search a probationer would interfere to an appreciable degree with the probation system by making a magistrate, rather than the probation officer, the judge of how closely a probationer needs to be supervised”) (quotation marks omitted).

“Probationers, however, do not forgo their Fourth Amendment rights in full.” Chandler, ___ Mich App at ___. “A warrantless search of a probationer’s home is unconstitutional if not coupled with an express waiver from the probationer, or the presence of reasonable suspicion.” Id. at ___. In Chandler, defendant’s “probation order simply stated he was to submit to a search of his person and property.” Id. at ___ (“It did not include the requirement of reasonable cause as was stated at sentencing.”). Considering Knights’ totality of the circumstances test, the Court of Appeals noted “the importance of the trial court’s probation order as a salient circumstance.” Chandler, ___ Mich App at ___. “However, [defendant] did not sign or date the probation order, and there [was] no indication that he was aware of its contents or consented to the same.” Id. at ___ (observing that defendant was told at sentencing “that he would be subject to searches if reasonable cause or suspicion existed that he had violated the terms of probation or committed a crime”). Accordingly, “the warrantless search of [defendant’s] bedroom violated [defendant’s] constitutional rights under the Fourth Amendment” and the fruits of the search must be suppressed “[b]arring any other Fourth Amendment exception to the warrant requirement[.]” Id. at ___ (remanding to the trial court for further development of the record regarding whether the defendant’s cousin had common authority to consent to the search and whether the cousin’s consent was freely and voluntarily given).

3.Strip Searches⁴

For juveniles arrested or detained for a misdemeanor offense or a civil infraction, a strip search must not occur unless:

“(a) The person arrested is being lodged into a detention facility by order of a court or there is reasonable cause to believe that the person is concealing a weapon, a controlled substance, or evidence of a crime[; and]

(b) The strip search is conducted by a person who has obtained prior written authorization from the chief law enforcement officer of the law enforcement agency conducting the strip search, or from that officer’s designee; or if the strip search is conducted upon a minor in a juvenile detention facility which is not operated by a law enforcement agency, the strip search is conducted by a person who has obtained prior written authorization from the chief administrative officer of that facility, or from that officer’s designee.” MCL 764.25a(2).

Anyone conducting or assisting with the strip search must be of the same sex as the person being searched. MCL 764.25a(3). In addition, the strip search must be conducted “in a place that prevents the search from being observed by a person not conducting or necessary to assist with the search.” Id.

The arresting officer must prepare a report of the strip search and include the following information:

“(a) The name and sex of the person subjected to the strip search.

(b) The name and sex of the person conducting the strip search.

(c) The name and sex of a person who assists in conducting the strip search.

(d) The time, date, and place of the strip search.

(e) The justification for conducting a strip search.

(f) A list of all items recovered from the person who was strip searched.

(g) A copy of the written authorization required under subsection (2)(b).” MCL 764.25a(4).

By its terms, the protections in MCL 764.25a do not apply to persons arrested or detained for felony offenses. MCL 764.25a(2). They also do not apply to a person being lodged or detained pursuant to a court order. MCL 764.25a(7). For purposes of MCL 764.25a(7), the court order authorizing detention must be entered upon the record of the court. In criminal cases, an arrest warrant is not “an order of a court authorizing continued custody or detention of a person in a detention facility[.]” OAG, 1985, No 6,298, p 89 (June 6, 1985). See also MCL 712A.2c and MCR 3.933(B), which allow the court to issue an order to apprehend a juvenile. “Detention in a facility subsequent to an arrest, but prior to an appearance before a magistrate, is not pursuant to an order of a court requiring the lodging of the person in a detention facility.” OAG, 1985, No 6,298, p 89 (June 6, 1985). “However, a juvenile may not be detained in a secure facility pending hearing unless the court has considered the results of a detention screening tool conducted on the juvenile under MCR 3.907.” MCR 3.933(B).

Any strip search must comply with the Fourth Amendment’s “reasonableness” requirement. See Bell v Wolfish, 441 US 520, 559 (1979) (setting out the balancing test to determine reasonableness, and upholding the practice of routine strip searches following contact visitation); see also Florence v Board of Chosen Freeholders of County of Burlington, 566 US 318, 324, 339 (2012) (holding that the Fourth Amendment is not violated when correctional officials require a detainee, “regardless of the circumstances of the arrest, the suspected offense, or the detainee’s behavior, demeanor, or criminal history[,]” to undergo a visual strip search before being admitted to a jail’s general population).

4.Body Cavity Searches⁵

A body cavity search may be conducted only pursuant to a valid search warrant, unless the person to be searched (1) is serving a sentence for a criminal offense in a detention facility or a state correctional facility housing prisoners under the jurisdiction of the Department of Corrections; (2) is lodged, pursuant to a court order, in an inpatient facility and is self-abusive, making the search necessary for his or her protection; or (3) is a juvenile who is residing in a juvenile detention facility as a result of a dispositional order entered after adjudication. MCL 764.25b(2); MCL 764.25b(3). In order to conduct a warrantless body cavity search, the person conducting the search must obtain “prior written authorization from the chief administrative officer of the facility or from that officer’s designee.” MCL 764.25b(4).

“A body cavity search shall be conducted by a licensed physician or a physician’s assistant, licensed practical nurse, or registered professional nurse acting with the approval of a licensed physician. If the body cavity search is conducted by a person of the opposite sex as the person being searched, the search shall be conducted in the presence of a person of the same sex as the person being searched.” MCL 764.25b(5).

Any body cavity search must comply with the Fourth Amendment’s “reasonableness” requirement. See Bell, 441 US at 559 (setting out the balancing test to determine reasonableness, and upholding the practice of routine strip searches following contact visitation); see also Florence, 566 US at 324, 339 (holding that the Fourth Amendment is not violated when correctional officials require a detainee, “regardless of the circumstances of the arrest, the suspected offense, or the detainee’s behavior, demeanor, or criminal history[,]” to undergo a visual strip search, including a visual search of body cavities, before being admitted to a jail’s general population).