SB-0188, As Passed House, April 1, 2009

HOUSE SUBSTITUTE FOR

SENATE BILL NO. 188

     A bill to amend 1966 PA 189, entitled

"An act to provide procedures for making complaints for, obtaining,

executing and returning search warrants; and to repeal certain acts

and parts of acts,"

by amending sections 1 and 4 (MCL 780.651 and 780.654), section 1

as amended by 2003 PA 185 and section 4 as amended by 2002 PA 112.

THE PEOPLE OF THE STATE OF MICHIGAN ENACT:

     Sec. 1. (1) When an affidavit is made on oath to a magistrate

authorized to issue warrants in criminal cases, and the affidavit

establishes grounds for issuing a warrant under this act, the

magistrate, if he or she is satisfied that there is probable cause

for the search, shall issue a warrant to search the house,

building, or other location or place where the person, property, or

thing to be searched for and seized is situated.

     (2) An affidavit for a search warrant may be made by any

electronic or electromagnetic means of communication, including by

facsimile or over a computer network, if both of the following

occur:

     (a) The judge or district court magistrate orally administers

the oath or affirmation to an applicant for a search warrant who

submits an affidavit under this subsection.

     (b) The affiant signs the affidavit. Proof that the affiant

has signed the affidavit may consist of an electronically or

electromagnetically transmitted facsimile of the signed affidavit

or an electronic signature on an affidavit transmitted over a

computer network.

     (3) A judge or district court magistrate may issue a written

search warrant in person or by any electronic or electromagnetic

means of communication, including by facsimile or over a computer

network.

     (4) The peace officer or department receiving an

electronically or electromagnetically issued search warrant shall

receive proof that the issuing judge or district court magistrate

has signed the warrant before the warrant is executed. Proof that

the issuing judge or district court magistrate has signed the

warrant may consist of an electronically or electromagnetically

transmitted facsimile of the signed warrant or an electronic

signature on a warrant transmitted over a computer network.

     (5) If an oath or affirmation is orally administered by

electronic or electromagnetic means of communication under this

section, the oath or affirmation is considered to be administered

before the judge or district court magistrate.

     (6) If an affidavit for a search warrant is submitted by

electronic or electromagnetic means of communication, or a search

warrant is issued by electronic or electromagnetic means of

communication, the transmitted copies of the affidavit or search

warrant are duplicate originals of the affidavit or search warrant

and are not required to contain an impression made by an impression

seal.

     (7) Except as provided in subsection (8), an affidavit for a

search warrant contained in any court file or court record

retention system is nonpublic information.

     (8) On the fifty-sixth day following the issuance of a search

warrant, the search warrant affidavit contained in any court file

or court record retention system is public information unless,

before the fifty-sixth day after the search warrant is issued, a

peace officer or prosecuting attorney obtains a suppression order

from a magistrate upon a showing under oath that suppression of the

affidavit is necessary to protect an ongoing investigation or the

privacy or safety of a victim or witness. The suppression order may

be obtained ex parte in the same manner that the search warrant was

issued. An initial suppression order issued under this subsection

expires on the fifty-sixth day after the order is issued. A second

or subsequent suppression order may be obtained in the same manner

as the initial suppression order and shall expire on a date

specified in the order. This subsection and subsection (7) do not

affect a person's right to obtain a copy of a search warrant

affidavit from the prosecuting attorney or law enforcement agency

under the freedom of information act, 1976 PA 442, MCL 15.231 to

15.246.

     Sec. 4. (1) 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 any

the person, property, or other thing 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.

     (2) The warrant shall either state the grounds or the probable

or reasonable cause for its issuance or shall have attached to it a

copy of the affidavit.

     (3) Upon a showing that it is necessary to protect an ongoing

investigation or the privacy or safety of a victim or witness, the

magistrate may order that the affidavit be suppressed and not be

given to the person whose property was seized or whose premises

were searched until that person is charged with a crime or named as

a claimant in a civil forfeiture proceeding involving evidence

seized as a result of the search.

     Enacting section 1. This amendatory act does not take effect

unless House Bill No. 4096 of the 95th Legislature is enacted into

law.