particularity requirement in Michigan

2025It is also remarkable that the lead opinion’s particularity analysis—like that of the Court of Appeals majority—does not rely on on-point caselaw from the federal courts of appeals, despite the fact that it is the federal Constitution under consideration. 76 This avoidance is perhaps unsurprising, however, as it appears that every federal court of appeals to have definitively answered the question has signaled that a warrant’s specification of the offense to be searched for in a digital device satisfies the Fourth Amendment’s particularity 74 Ante at 19 n 16, quoting Carson, ___ Mich App at __

2019The Sixth Circuit Court of Appeals recently considered the particularity requirement in relation to the search of the contents of a cell phone in United States v Castro, 881 F3d 961, 964 (CA 6, 2018).

2019“The purpose of the particularity 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.” Id. at 304 (citation and quotation marks omitted).

2016“The purpose of the particularity 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.” Id. at 304 (internal quotations omitted).

2025This issue is not currently before the Court. 8 whether the Court of Appeals erred by: (1) holding that the warrant to search the defendant’s cell phone violated the Fourth Amendment’s particularity requirement, see People v Hughes, 506 Mich 512 , 538[; 958 NW2d 98 ] (2020); (2) failing to sever any valid portions of the search warrant from any invalid portions, see People v Keller, 479 Mich 467, 479 [; 739 NW2d 505 ] (2007); (3) holding that the good-faith exception to the exclusionary rule did not apply, see People v Goldston, 470 Mich 523, 531 [; 682 NW2d 479 ] (2004), discussing United Sta

2025This issue is not currently before the Court. 8 whether the Court of Appeals erred by: (1) holding that the warrant to search the defendant’s cell phone violated the Fourth Amendment’s particularity requirement, see People v Hughes, 506 Mich 512 , 538[; 958 NW2d 98 ] (2020); (2) failing to sever any valid portions of the search warrant from any invalid portions, see People v Keller, 479 Mich 467, 479 [; 739 NW2d 505 ] (2007); (3) holding that the good-faith exception to the exclusionary rule did not apply, see People v Goldston, 470 Mich 523, 531 [; 682 NW2d 479 ] (2004), discussing United Sta

2025This issue is not currently before the Court. 8 whether the Court of Appeals erred by: (1) holding that the warrant to search the defendant’s cell phone violated the Fourth Amendment’s particularity requirement, see People v Hughes, 506 Mich 512 , 538[; 958 NW2d 98 ] (2020); (2) failing to sever any valid portions of the search warrant from any invalid portions, see People v Keller, 479 Mich 467, 479 [; 739 NW2d 505 ] (2007); (3) holding that the good-faith exception to the exclusionary rule did not apply, see People v Goldston, 470 Mich 523, 531 [; 682 NW2d 479 ] (2004), discussing United Sta

2025This issue is not currently before the Court. 8 whether the Court of Appeals erred by: (1) holding that the warrant to search the defendant’s cell phone violated the Fourth Amendment’s particularity requirement, see People v Hughes, 506 Mich 512 , 538[; 958 NW2d 98 ] (2020); (2) failing to sever any valid portions of the search warrant from any invalid portions, see People v Keller, 479 Mich 467, 479 [; 739 NW2d 505 ] (2007); (3) holding that the good-faith exception to the exclusionary rule did not apply, see People v Goldston, 470 Mich 523, 531 [; 682 NW2d 479 ] (2004), discussing United Sta

2025“Whether a search warrant satisfies the particularity requirement depends on the circumstances and the types of items involved.” People v Brcic, 342 Mich App 271 , 278; 994 NW2d 812 (2022), citing Steele v United States, 267 US 498, 503 ; 45 S Ct 414 ; 69 L Ed 757 (1925); see also United States v Galpin, 720 F3d 436, 446 (CA 2, 2013) (“[A] failure to describe the items to be seized with as much particularity as the circumstances reasonably allow offends the Fourth Amendment . . . .”) (quotation marks and citation omitted). 11 Our state Constitution, Const 1963, art 1, § 11, also guards against

2025See, e.g., Galpin, 720 F3d at 447 (finding it appropriate to view the particularity requirement in the context of digital searches with a “heightened sensitivity”); United States v Russian, 848 F3d 1239, 1245 (CA 10, 2017) (recognizing the importance of the particularity requirement for searches of digital information because such searches are “especially vulnerable to a worrisome exploratory rummaging by the government”) (quotation marks and citation omitted); Commonwealth v Dorelas, 473 Mass 496, 502; 43 NE3d 306 (2016) (“[G]iven the properties that render an iPhone distinct from 16 the clos

2025But it 44 See Hughes, 506 Mich at 519-520. 45 Id. at 521. 46 Id. at 550-551. 47 Id. at 551 n 26. 48 Id. at 538 (first emphasis added), quoting United States v Loera, 923 F3d 907, 917, 922 (CA 10, 2019). 49 See Hughes, 506 Mich at 538. 15 also provides insight as to the proper focus of a warrant.

2020By limiting the authorization to search to the specific areas and things for which there is probable cause to search, the requirement ensures that the search will be carefully tailored to its justifications, and will not take on the character of the wide-ranging exploratory searches the Framers 22 intended to prohibit. [Maryland v Garrison, 480 US 79, 84 ; 107 S Ct 1013 ; 94 L Ed 2d 72 (1987); see also, e.g., Horton, 496 US at 139 .] While “officers do not have to stop executing a search warrant when they run across evidence outside the warrant’s scope, they must nevertheless reasonably direct

2025“Whether a search warrant satisfies the particularity requirement depends on the circumstances and the types of items involved.” People v Brcic, 342 Mich App 271 , 278; 994 NW2d 812 (2022), citing Steele v United States, 267 US 498, 503 ; 45 S Ct 414 ; 69 L Ed 757 (1925); see also United States v Galpin, 720 F3d 436, 446 (CA 2, 2013) (“[A] failure to describe the items to be seized with as much particularity as the circumstances reasonably allow offends the Fourth Amendment . . . .”) (quotation marks and citation omitted). 11 Our state Constitution, Const 1963, art 1, § 11, also guards against

2025“Whether a search warrant satisfies the particularity requirement depends on the circumstances and the types of items involved.” People v Brcic, 342 Mich App 271 , 278; 994 NW2d 812 (2022), citing Steele v United States, 267 US 498, 503 ; 45 S Ct 414 ; 69 L Ed 757 (1925); see also United States v Galpin, 720 F3d 436, 446 (CA 2, 2013) (“[A] failure to describe the items to be seized with as much particularity as the circumstances reasonably allow offends the Fourth Amendment . . . .”) (quotation marks and citation omitted). 11 Our state Constitution, Const 1963, art 1, § 11, also guards against

2026The Michigan Constitution contains a substantively similar provision at Const 1963, art 1 § 11. “ ‘The purpose of the particularity 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.’ ” Brcic, 342 Mich App at 278, quoting People v Unger, 278 Mich App 210, 245 ; 749 NW2d 272 (2008).

2026The Michigan Constitution contains a substantively similar provision at Const 1963, art 1 § 11. “ ‘The purpose of the particularity 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.’ ” Brcic, 342 Mich App at 278, quoting People v Unger, 278 Mich App 210, 245 ; 749 NW2d 272 (2008).

2025F. CAVANAGH, C.J., and BRICKLEY and GRIFFIN, JJ.) (same). 10 “particularly describ[e] the place to be searched, and the persons or things to be seized.” US Const, Am IV (emphasis added). 11 “The manifest purpose of this particularity requirement was to prevent general searches.” Maryland v Garrison, 480 US 79, 84 ; 107 S Ct 1013 ; 94 L Ed 2d 72 (1987).

2025F. CAVANAGH, C.J., and BRICKLEY and GRIFFIN, JJ.) (same). 10 “particularly describ[e] the place to be searched, and the persons or things to be seized.” US Const, Am IV (emphasis added). 11 “The manifest purpose of this particularity requirement was to prevent general searches.” Maryland v Garrison, 480 US 79, 84 ; 107 S Ct 1013 ; 94 L Ed 2d 72 (1987).

2022As explained by this Court in People v McGhee, 255 Mich App 623, 626 ; 662 NW2d 777 (2003): The test for determining whether the description in the warrant is sufficient to satisfy the particularity requirement is whether the description is such that the officers with a search warrant can with reasonable effort ascertain and identify the place intended.

2022As explained by this Court in People v McGhee, 255 Mich App 623, 626 ; 662 NW2d 777 (2003): The test for determining whether the description in the warrant is sufficient to satisfy the particularity requirement is whether the description is such that the officers with a search warrant can with reasonable effort ascertain and identify the place intended.

2025In so finding, Hughes relied upon People v Herrera, 357 P3d 1227 (Colo 2015), describing that case as holding that: “allowing a search of an entire device for evidence of a crime based upon the possibility that evidence of the crime could be found anywhere on the phone and that the incriminating data could be hidden or manipulated would ‘render the warrant a general warrant in violation of the Fourth Amendment’s particularity requirement.’ ” Hughes, 506 Mich at 542, quoting Herrera, 357 P3d at 1228 .

2025In so finding, Hughes relied upon People v Herrera, 357 P3d 1227 (Colo 2015), describing that case as holding that: “allowing a search of an entire device for evidence of a crime based upon the possibility that evidence of the crime could be found anywhere on the phone and that the incriminating data could be hidden or manipulated would ‘render the warrant a general warrant in violation of the Fourth Amendment’s particularity requirement.’ ” Hughes, 506 Mich at 542, quoting Herrera, 357 P3d at 1228 .

2024This Court has suggested that a search warrant is “plainly invalid” if “it failed to describe the type of evidence to be sought.” Brcic, ___ Mich App at ___; slip op at 4, quoting Groh v Ramirez, 540 US 551, 557 ; 124 S Ct 1284 ; 157 L Ed2d 1068 (2004).

2024This Court has suggested that a search warrant is “plainly invalid” if “it failed to describe the type of evidence to be sought.” Brcic, ___ Mich App at ___; slip op at 4, quoting Groh v Ramirez, 540 US 551, 557 ; 124 S Ct 1284 ; 157 L Ed2d 1068 (2004).

2025People v Russo, 439 Mich 584, 603 ; 487 NW2d 698 (1992) (quotation marks and citation 37 omitted). 13 approach “extends to warrants authorizing the search of electronic devices.” 38 The United States Court of Appeals for the Eighth Circuit has similarly explained that the particularity requirement is one of “practical accuracy rather than a hypertechnical one.” 39 In Andresen v Maryland, the Supreme Court of the United States made clear that warrant language must be read in context. 40 Accordingly, the Supreme Court held, a general reference to “crime” at the end of the warrant in Andresen nee

2025People v Russo, 439 Mich 584, 603 ; 487 NW2d 698 (1992) (quotation marks and citation 37 omitted). 13 approach “extends to warrants authorizing the search of electronic devices.” 38 The United States Court of Appeals for the Eighth Circuit has similarly explained that the particularity requirement is one of “practical accuracy rather than a hypertechnical one.” 39 In Andresen v Maryland, the Supreme Court of the United States made clear that warrant language must be read in context. 40 Accordingly, the Supreme Court held, a general reference to “crime” at the end of the warrant in Andresen nee

2025See, e.g., State v Henderson, 289 Neb 271, 290; 854 NW2d 616 (2014) (holding that a warrant authorizing a search for “[a]ny and all information” and listing various categories of data did not comply with the particularity requirement); Terreros v State, 312 A3d 651, 667 (Del, 2024) (holding that a warrant that “in effect” allowed the police to search “any and all data” the search to evidence of a specific crime, ordinarily within a specific time period, rather than allowing a fishing expedition for all criminal activity.”); Richardson, 481 Md at 458- 459 (“Perhaps the most common limitation th

2025See, e.g., State v Henderson, 289 Neb 271, 290; 854 NW2d 616 (2014) (holding that a warrant authorizing a search for “[a]ny and all information” and listing various categories of data did not comply with the particularity requirement); Terreros v State, 312 A3d 651, 667 (Del, 2024) (holding that a warrant that “in effect” allowed the police to search “any and all data” the search to evidence of a specific crime, ordinarily within a specific time period, rather than allowing a fishing expedition for all criminal activity.”); Richardson, 481 Md at 458- 459 (“Perhaps the most common limitation th

2023By limiting the authorization to search to the specific areas and things for which there is probable cause to search, the requirement ensures that the search will be carefully tailored to its justifications, and will not take on the character of the wide-ranging exploratory searches the Framers intended to prohibit. [Maryland v Garrison, 480 US 79, 84 ; 107 S Ct 1013 ; 94 L Ed 2d 72 (1987); see also, e.g., Horton [v California], 496 US [128], 139[; 110 S Ct 2301 ; 110 L Ed 2d 112 (1990)].] Before addressing the specific affidavit and warrant from the present case, it is important to note “[a]

2020See Horton, 496 US at 140-141 .12 This particularity requirement defines the permissible scope of a search pursuant to a warrant, and any deviation from that scope is a warrantless search that is unreasonable absent an exception to the warrant requirement.

2026Steele v United States, 267 US 498, 503 ; 45 S Ct 414 ; 69 L Ed 757 (1925); United States v Gahagan, 865 F 2d 1490, 1496 (CA 6, 1989).

2025See also United States v Jackson, 118 F4th 447, 450, 453-454 (CA 1, 2024) (upholding a search based on a warrant to seize and search “ ‘mobile devices’ ” for “ ‘any and all computer-related documentation, records, documents, material, proceeds, and passwords or other data security devices related to the possession and transfer of child pornography’ ” by applying the good-faith exception without “definitively determin[ing]” whether the particularity requirement was satisfied) (First Circuit); United States v Morton, 46 F4th 331 , 335 (CA 5, 2022) (en banc) (resolving a case en banc using the go

2025See also United States v Jackson, 118 F4th 447, 450, 453-454 (CA 1, 2024) (upholding a search based on a warrant to seize and search “ ‘mobile devices’ ” for “ ‘any and all computer-related documentation, records, documents, material, proceeds, and passwords or other data security devices related to the possession and transfer of child pornography’ ” by applying the good-faith exception without “definitively determin[ing]” whether the particularity requirement was satisfied) (First Circuit); United States v Morton, 46 F4th 331 , 335 (CA 5, 2022) (en banc) (resolving a case en banc using the go

2025See, e.g., Galpin, 720 F3d at 447 (finding it appropriate to view the particularity requirement in the context of digital searches with a “heightened sensitivity”); United States v Russian, 848 F3d 1239, 1245 (CA 10, 2017) (recognizing the importance of the particularity requirement for searches of digital information because such searches are “especially vulnerable to a worrisome exploratory rummaging by the government”) (quotation marks and citation omitted); Commonwealth v Dorelas, 473 Mass 496, 502; 43 NE3d 306 (2016) (“[G]iven the properties that render an iPhone distinct from 16 the clos

2025See, e.g., Galpin, 720 F3d at 447 (finding it appropriate to view the particularity requirement in the context of digital searches with a “heightened sensitivity”); United States v Russian, 848 F3d 1239, 1245 (CA 10, 2017) (recognizing the importance of the particularity requirement for searches of digital information because such searches are “especially vulnerable to a worrisome exploratory rummaging by the government”) (quotation marks and citation omitted); Commonwealth v Dorelas, 473 Mass 496, 502; 43 NE3d 306 (2016) (“[G]iven the properties that render an iPhone distinct from 16 the clos

2025It is also remarkable that the lead opinion’s particularity analysis—like that of the Court of Appeals majority—does not rely on on-point caselaw from the federal courts of appeals, despite the fact that it is the federal Constitution under consideration. 76 This avoidance is perhaps unsurprising, however, as it appears that every federal court of appeals to have definitively answered the question has signaled that a warrant’s specification of the offense to be searched for in a digital device satisfies the Fourth Amendment’s particularity 74 Ante at 19 n 16, quoting Carson, ___ Mich App at __

2025The issue we confront today is the proper relationship between these realities and the Fourth Amendment’s particularity requirement, which mandates that a warrant is not a dictum but is a judicial act of the court which it will thereafter recognize as a binding decision.’ ”); see also People v Kevorkian, 447 Mich 436 , 487 n 65; 527 NW2d 714 (1994) (opinion by M.

2025The issue we confront today is the proper relationship between these realities and the Fourth Amendment’s particularity requirement, which mandates that a warrant is not a dictum but is a judicial act of the court which it will thereafter recognize as a binding decision.’ ”); see also People v Kevorkian, 447 Mich 436 , 487 n 65; 527 NW2d 714 (1994) (opinion by M.