in Re Kirschner Minors

Opinion

STATE OF MICHIGAN

COURT OF APPEALS

UNPUBLISHED In re KIRSCHNER, Minors. April 3, 2018

No. 339578 Muskegon Circuit Court Family Division LC No. 14-043847-NA

Before: MARKEY, P.J., and SHAPIRO and GADOLA, JJ.

SHAPIRO, J. (concurring).

I concur with my colleagues’ conclusion that the exclusionary rule does not apply to evidence obtained in violation of the Fourth Amendment when the evidence is offered in a child protection case. I write only to emphasize that if the state commits a Fourth Amendment violation while taking action in the context of child protection, the unconstitutionally-obtained evidence remains subject to the exclusionary rule if it is offered in a criminal case. The determining factor is not whether the unconstitutional entry was grounded in the state’s performance of its child protection duty. The determining factor is the nature of the proceeding in which the unconstitutionally-obtained evidence is presented.

/s/ Douglas B. Shapiro

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