People v. Paul

512 N.W.2d 20, 203 Mich. App. 55

• Court: Michigan Court of Appeals
• Decided: December 20, 1993
• Docket: Docket 146986
• Status: Published

Opinions

Neff, J.

This is a prosecutor’s appeal from an order suppressing evidence seized pursuant to a search warrant and dismissing charges against defendant. The cross appeal of defendant chailenges orders denying his motions for discovery and to suppress evidence on the basis of the failure of the police to comply with MCL 780.656; MSA 28.1259(6). We affirm.

i

A district court magistrate issued a search warrant for defendant’s residence. She did not receive specific authorization from a district court judge before issuing the warrant. Defendant filed a motion to suppress as evidence items seized pursuant to the warrant. At the suppression hearing, the chief district court judge testified that the policy¹ in that district court permits district court magistrates to issue search warrants without first contacting a district court judge.

A

On appeal, the prosecution argues that the trial court erred in suppressing the admission of the seized evidence on the basis of the magistrate’s failure to obtain individual authorization for the warrant. A district court magistrate has jurisdiction "[t]o issue search warrants, when authorized to do so by a district court judge.” MCL 600.8511(d); MSA 27A.8511(d). Notwithstanding statutory provisions to the contrary, magistrates exercise only those duties expressly authorized by the chief judge of the district or division. MCR 4.401(B).

The prosecution argues that the magistrate was authorized to issue the search warrant under Administrative Order No. 1985-1 of the 5th District Court.² The order identified specific district court magistrates and authorized them to "exercise jurisdiction provided in [§ 8511.]”

b

Judicial construction is warranted if reasonable minds could differ concerning the meaning of a statute. See Dep’t of Social Services v Brewer, 180 Mich App 82, 84; 446 NW2d 593 (1989). Here, we find the language "when authorized to do so by a district court judge” susceptible of multiple meanings. Therefore, judicial construction is necessary.

In construing a statute, we look at its object and the harm it is designed to remedy, and then apply a reasonable construction that best accomplishes the statute’s purpose. In re Forfeiture of $5,264, 432 Mich 242, 248; 439 NW2d 246 (1989). Nothing will be read into a statute that is not within the manifest intention of the Legislature as gathered from the act itself. Jefferson Schools v Detroit Edison Co, 154 Mich App 390, 393; 397 NW2d 320 (1986). When alternative interpretations are possible, a court must ascribe to the Legislature the most probable and reasonable intention. People v Schneider, 119 Mich App 480, 485; 326 NW2d 416 (1982), citing Oakland Schools Bd of Ed v Superintendent of Public Instruction, 392 Mich 613, 619; 221 NW2d 345 (1974).

ii

We conclude that the reasonable construction of § 8511(d) that best accomplishes its object is to require that a district court magistrate obtain in each case specific authorization of a district court judge to issue a search warrant, rather than permitting search warrants to be issued on the basis of a blanket authorization.

The power to authorize search warrants is an awesome responsibility involving issues of significant constitutional implications. The delegation of that authority to nonjudicial officers who often are not lawyers³ and who may lack legal training altogether strikes us as unwise and not within the intent of the Legislature.

The prosecution urges us to read § 8511(d) along with MCL 780.651(1); MSA 28.1259(1)(1) and MCL 780.653; MSA 28.1259(3) and to reach the conclusion that the Legislature did not intend to limit the authorization in § 8511(d) to the issuance only of the search warrant sought. MCL 780.651(1); MSA 28.1259(1)(1), part of the Code of Criminal Procedure, relates to the issuance of search warrants on affidavit. MCL 780.653; MSA 28.1259(3), also part of the Code of Criminal Procedure, relates to a magistrate’s findings of probable cause being based on the affidavit. The definitions section of the Code of Criminal Procedure defines the term "magistrate” as including district court judges, but not district court magistrates. MCL 761.1(f); MSA 28.843(f). The prosecution, however, would have us conclude that a district court magistrate is included within the term "magistrate” contained in MCL 780.651(1); MSA 28.1259(1)(1) and MCL 780.653; MSA 28.1259(3), because of the language of § 8511(d), part of the Revised Judicature Apt, which provides authorization under certain circumstances to issue search warrants.

To hold that a district court magistrate is within the definition of "magistrate” under MCL 761.1(f); MSA 28.843(f), would require us to rewrite the statute. To the contrary, a close reading of the statutes involved leads to the opposite result.

The portion of MCL 780.651; MSA 28.1259(1) that refers to an affidavit made on oath to a magistrate authorized to issue warrants is limited by the definition of the Code of Criminal Procedure that limits the term magistrate to district court judges. MCL 780.651(1); MSA 28.1259(1)(1) is the only portion of that statute that refers to the term "magistrate.” The remainder of the statute references either "judge or district court magistrate” or "judge” when dealing with the authority to issue search warrants. The selective use of the term "magistrate” in MCL 780.651(1); MSA 28.1259(1)(1) does not support the conclusion that the authority to issue warrants under § 8511(d) brings district court magistrates within the definition of magistrates under MCL 780.651(1); MSA 28.1259(1X1).

Further, MCL 780.651; MSA 28.1259(1) gives credence to the conclusion that the intent of the Legislature is to have district court judges have the last word in deciding whether to issue a search warrant. Under MCL 780.651(2); MSA 28.1259(1) (2), an affidavit may be made to a judge or district court magistrate via electronic or electromagnetic means of communication if the judge or district court magistrate orally administers the oath or affirmation and the affiant signs the affidavit. However, only a "judge” may issue a written search warrant on the basis of an affidavit.⁴ MCL 780.351(3); MSA 28.1259(1)(3). Thus there is a very clear distinction drawn in MCL 780.651; MSA 28.1259(1) between the authority of a district court magistrate and a district court judge, not the blurred line of authority for which the prosecution argues.

In addition, the term "magistrate” contained in MCL 780.653; MSA 28.1259(3), refers to a magistrate as defined in the Code of Criminal Procedure, i.e., a district court judge, and does not provide any support for the conclusion that district court judges may provide a blanket authorization to district court magistrates to issue search warrants.

c

The prosecutor argued in the circuit court that the statutory scheme allowing district court magistrates to authorize search warrants would be meaningless if a district court judge had to specifically authorize each request for a warrant. The circuit judge clearly rejected this line of reasoning, in part because of his own experience as a district court judge for a number of years during which that is precisely how the procedure was carried out. While his comments on the record are largely anecdotal, they provide persuasive reasoning on which to reject the claim that a requirement of authorization case by case is too burdensome to have been intended by the Legislature.

At the time § 8511 was adopted in 1968, the signature of a judge was required for the issuance of a search warrant. This signature requirement created obvious problems for police officers seeking warrants at odd hours of the night under exigent circumstances.⁵ The provisions of § 8511(d) permitted a procedure by which police officers could contact a judge by telephone to explain the need for the search warrant and the judge could determine the validity of the request and then by telephone authorize a magistrate, located nearer the police officer, to sign the warrant authorizing the search.

The problem that caused the need for § 8511(d) has been obviated by the widespread use of facsimile equipment in recent years. Under MCL 780.651(2), (3); MSA 28.1259(1)(2), (1)(3), a judge or a district court magistrate can orally administer an oath or affirmation by telephone to an applicant for a search warrant who submits an affidavit and then receive a facsimile of the signed affidavit, at which point the judge either can authorize the magistrate to issue the warrant in person or can issue the warrant via facsimile equipment.

D

We also note that People v White, 167 Mich App 461, 465, n 1; 423 NW2d 225 (1988), a case cited by the prosecution for the proposition that this Court has commented on a blanket authorization and has held it not violative of § 8511(d), does not appear to involve a blanket authorization. The White opinion is narrowly confined to the issue whether written authorization from a judge is required and never mentions, or even hints at, the issue of a blanket authorization. Even if that case did involve a blanket authorization, there was no challenge to it.

hi

We realize that to require a specific authorization of each search warrant issued by a district court magistrate will be, to some extent, burdensome on district judges, many of whom already carry very heavy work loads. Requiring additional nighttime, weekend, and holiday duty will, in some counties, require considerable additional time commitments by those judges. However, as was clear from the ruling of the circuit judge in this case, in practice § 8511(d) was previously understood to require specific authorization of each warrant. We are unwilling to construe the statute in a way that we believe was never contemplated or intended by the Legislature. Any such expansion of the duties and responsibilities of district court magistrates should come in clear and unequivocal terms from the Legislature.

We affirm the decision of the circuit judge and find that the search warrant was issued by the magistrate without proper authorization of a district judge as required by § 8511(d). Our disposition of this issue makes it unnecessary for us to reach the issues raised in defendant’s cross appeal.

Affirmed.

Mackenzie, J., concurred.

1 According to the judge’s testimony, Administrative Order No. 1991-1 of the 5th District Court, signed June 5, 1991, about five months before the motion to suppress was heard, established the policy at issue here, permitting named district court magistrates to issue search warrants on their own authority without first contacting a district court judge.

2 A copy of this administrative order was attached to defendant’s motion to suppress and labeled Exhibit a and was referred to in the transcript as Defense Exhibit 2, but the chief judge of the district court who testified specifically referred to the 1991 administrative order as establishing the policy at issue in this case. The transcript indicates that the 1991 order was marked People’s Proposed Exhibit 3, but no copy of the 1991 order was found in the lower court record. The transcript index indicates that "px#3” (plaintiffs exhibit number 3) was identified, but not received into evidence.

3 The district court magistrate who issued the search warrant in this case had many years of experience in that job, but she is not a lawyer. She testified that she attended seminars regarding the issuance of search warrants, but there is no apparent requirement that any training be completed by district court magistrates in order to be covered by the blanket delegation of authority to issue search warrants. We do not suggest that the district court magistrate in this case was not competent or that she acted in bad faith. However, we do strongly suggest that granting broad discretion to make decisions of constitutional magnitude to persons who may be untrained in the requirements of the law was not intended by the Legislature.

4 There is an exception for search warrants required under § 625a of the Vehicle Code, MCL 257.625a; MSA 9.2325(1), which deals with blood alcohol tests. MCL 780.651(3); MSA 28.1259(1X3).

5 As pointed out by the circuit judge in ruling on the motion in this case, a police officer in a rural county might often be at great distance from the only district judge in the county and, particularly in winter weather, the time required to reach the judge and obtain a signature would render the search warrant meaningless.