Summary
discussing the importance of trial court findings in the context of motions to suppress and collecting sources
Summary of this case from People v. WilliamsOpinion
SC: 165384 COA: 359014
09-15-2023
PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Dale Lynn BEILMAN, Defendant-Appellee.
Order
On order of the Court, the application for leave to appeal the January 5, 2023 judgment of the Court of Appeals is considered, and it is DENIED, because we are not persuaded that the question presented should be reviewed by this Court.
Cavanagh, J. (concurring)
The Court of Appeals held that an officer violated defendant's Fourth Amendment rights when he approached defendant's home at 12:20 a.m. and seized defendant's cell phone without a warrant. As part of its analysis, the Court of Appeals held that the prosecution did not show that the officer's warrantless seizure was justified by exigent circumstances. In this Court, the prosecution does not argue that—on the current record—this holding was erroneous, nor does it challenge any other aspect of the Court of Appeals’ opinion. Rather, the prosecution narrowly argues that "[t]he Court of Appeals abused its discretion by denying the prosecutor's request to remand the case for the taking of additional evidence [.]" (Emphasis added). It therefore requests that "this Court vacate the opinion of the Court of Appeals and remand the case to the trial court for the taking of additional evidence on the issue of whether [the officer's] decision to seize defendant's phone was justified by exigent circumstances." (Emphasis added).
I agree with the Court's decision to deny this relief. The trial court already held an evidentiary hearing on defendant's Fourth Amendment challenge that included the issue of whether the officer's seizure was justified by exigent circumstances. Nothing in the record indicates that the prosecution was unaware that exigency was an issue in this case, or that the prosecution was deprived of a full and fair opportunity to submit all relevant evidence at that hearing. Moreover, the prosecution affirmatively approved of the sufficiency of the record made before the trial court issued a decision on defendant's motion to suppress. Accordingly, I see no basis for remanding to the trial court to accept additional evidence on this point.
Zahra, J. (dissenting).
The Court of Appeals below reversed the trial judge's decision to deny defendant's motion to suppress evidence, applying an incorrect standard of law and substituting itself as the fact-finder. In the process, the Court of Appeals excluded from jury consideration highly relevant evidence of child pornography, found in substantial quantities on defendant's phone. The trial court reviewed the record, heard the parties’ arguments, and observed in-court testimony, but it decided only whether defendant had provided the police consent to seize his phone. The prosecution also raised the alternative argument that the police could have seized defendant's phone pending completion of a search warrant, even if defendant did not consent to the seizure. The trial court, however, did not examine that argument, nor did it review the record with an eye toward that argument or provide necessary factual findings on the question. Because the trial court should have been given an opportunity to perform its role as the finder of fact for motions to suppress and to review the prosecution's argument in favor of seizure pending completion of a search warrant, the Court of Appeals decision to grant defendant's motion to suppress was premature and should be reversed. The case should be remanded for proper adjudication before the trial court.
I. FACTS AND PROCEDURAL HISTORY
The following facts are uncontested by the parties and established through record evidence that was available to the trial court when it was making its decision. Specifically, these facts are based on body camera footage taken from the investigating police officer, in-court testimony from the investigating officer, and signed affidavits of search and arrest warrants available on the record and readily available on the trial court docket.
On July 21, 2020, around 9:00 p.m., a mother made a phone call to the Coloma Township Police Department in Berrien County. Her 12-year-old daughter told her that she had been repeatedly sexually abused by defendant, who had a daughter that was the girl's friend. The local police got on the phone with the mother at 9:21 p.m. In a conversation with the mother and the girl, the police obtained information that defendant had supervised the girl numerous times between January and July 2020 when she was at the defendant's house to visit his daughter.
Acting immediately on this information regarding recent and repeated sexual abuse of a child, the police contacted defendant and asked him for an interview. At 9:51 p.m., within a half-hour of receiving the girl's report, the police talked to defendant in person at his house. Defendant denied any knowledge of such abuse, claimed that the person who made the accusation could only have been the girl at issue, and told the police that the girl often wore inappropriate and sexualized clothing. There is no claim or accusation that this initial encounter with police was nonconsensual, forced, or otherwise amounted to arrest.
The prosecution explains that the police contacted defendant via phone, who then agreed to meet in person that night. Defendant does not dispute this account, and record evidence demonstrates that the police initiated in-person contact with defendant soon thereafter, at 9:51 p.m.
After this discussion, the police had received strong, contradictory statements from defendant and had further need to investigate the accusations to determine the validity and evidentiary support for the alleged abuse. Thus, the police returned to the mother and the girl to receive a statement in person, observing firsthand the girl's statements, reaction to the abuse, and her personal disposition. By the end of the second conversation with the mother and the girl, the police were informed that defendant had, on numerous separate occasions, used coercive and manipulative tactics to isolate the girl from others in the house, made her perform sexual acts, and pressured her to not disclose the abuse. The girl informed the police that on various occasions in the very recent past and all the way up to July 2020, defendant had directed her to an upstairs bedroom, blocked the door and locked it, stopped her escape, forced her to touch his genitals, and then told her that she could not tell anyone, giving her a $10 bill in order to secure her silence. Defendant overcame the girl's physical and verbal resistance and told her that he would go to jail if she spoke up. The girl informed the police that she did not report the abuse until July 2020 because she was convinced that she would no longer be with her friend, defendant's daughter, if she reported the assaults. Significantly, the girl also told the police that defendant had used his phone to record the sexual acts.
At that point, the police had substantial and detailed reports of child sexual abuse by an identifiable adult, authority figure. The accusations were specific, the source was named, and the statements were received and confirmed in person by the police. The reports included indications of concealment, with defendant using coercion and force to prevent observation of the abuse by others and suppress disclosure of the abuse by the girl. In addition, defendant had just that night made statements to the police in direct contradiction to the reported abuse and had indicated to the police that he believed the girl at issue was likely to have been the one who made the sexual abuse accusation. The police knew that defendant was a potential child abuser who could be in position of supervision and authority over other children (given his daughter and his daughter's age), carried out the potential abuse very recently, used coercion and concealed the abuse, and knew of and suspected the accusations of abuse from the specific girl at issue. If the girl's accusations were correct, there were substantial incentives for defendant to destroy all available evidence of sexual abuse, including recordings on the phone, and to again conceal disclosure of the criminal behavior as he allegedly attempted to do with the girl.
Acting with initiative and expediency to investigate a serious and credible allegation of child molestation, the police again went to defendant's house, this time to prevent destruction of valuable evidence of sexual abuse and secure defendant's phone. By the time the police had concluded their first discussion with defendant, completed the in-person interview of the mother and the girl to confirm and develop further evidence, and commuted between the various locations to arrive at defendant's residence a second time, the time was 12:21 a.m. That was merely two hours after the police had concluded their first discussion with defendant and three hours after the very beginning of the investigation when the mother called the police to file a report of abuse. Upon arriving at defendant's residence, the police talked to defendant and told him that they needed his phone. Defendant retrieved it from his house and gave it to the police, explaining he had "nothing to hide." The police did not enter defendant's home, did not obtain new information from a search of defendant's residence or surrounding property, and did not place defendant under arrest or take him into custody. The full extent of relevant police action was to approach defendant's house at his front door, ask that defendant retrieve his phone, obtain his phone, and leave. The police obtained possession of defendant's phone and kept it while they obtained a search warrant. There is no dispute that the police did not collect any probative evidence from defendant's phone (or any other property), by entering into the phone and searching it, until after a search warrant was issued.
A magistrate, reviewing the search warrant request and accompanying affidavits and case files, found that probable cause existed to search defendant's phone. The evidence contained in the search warrant request and affidavit was derived entirely from information gathered prior to the seizure of defendant's phone. Defendant does not contest the lawfulness of the search warrant application or the warrant's subsequent issuance. Upon searching defendant's phone, police discovered 80 images of child sexually abusive material, which were accessed from September 2019, right up to July 20, 2020.
The state filed charges against defendant for two counts of first-degree criminal sexual conduct, MCL 750.520b(2)(b) ; four counts of second-degree criminal sexual conduct, MCL 750.520c(1)(a) ; one count of kidnapping, MCL 750.349 ; and one count of possessing child sexually abusive material, MCL 750.145c. Defendant moved to suppress the evidence found on the phone, arguing that the police had obtained the phone without a warrant and that the search of the phone exceeded the scope of the search warrant once it had been issued. The trial court reviewed the record in the case and observed in-court testimony from the investigating officer and defendant's brother, who provided a short description of defendant's interactions with the officer when the police came back to defendant's house to obtain the phone. However, the trial court focused its attention and analysis on defendant's statements to the police, specifically his provision of the phone and accompanying assertion that he had "nothing to hide." In a thorough back-and-forth discussion with the prosecution and defense counsel, the court sorted through caselaw on consent and analyzed the facts at issue in the case. Further, at one point during the investigating officer's testimony, the court asked the officer directly about the physical manner by which defendant handed the phone over to the police. Although the prosecution argued that "exigent circumstances" supported the seizure of the phone pending a search warrant, the trial court devoted no attention or analysis to the issue. Instead, the trial court described the factual environment of the phone transfer and issued limited findings as to only the manner and circumstances by which defendant provided the phone to the police, concluding ultimately that defendant had consented to the phone's seizure. The trial court provided no description, analysis, or factual findings concerning the circumstances leading up to the phone's seizure, the evidence and justification for the police to believe defendant possessed evidence of child abuse and had committed serious crimes, the girl's detailed description of the defendant's concealment of abuse and defendant's awareness of the consequences of disclosure, or the existence of justification for the police to seize the phone pending a search warrant.
The Court of Appeals reversed, concluding that defendant had not provided consent. In addition, in lieu of remanding the case to the trial court to analyze the need for the police to seize the phone pending a search warrant even without consent, the Court of Appeals reviewed the record in the first instance and concluded that the motion to suppress should be granted. In its review of the evidence, the Court of Appeals believed there was no need to seize the phone given the lack of "imminent" destruction of evidence. Rejecting requests from the prosecution to allow for a full review of the issue before the trial court, the Court of Appeals ordered that defendant's motion to suppress be granted.
Although not argued by the prosecution, the Court of Appeals reasoned that information derived from a search of the property would not be justified under the "knock and talk" exception. See Florida v Jardines , 569 U.S. 1, 9 n 4, 133 S.Ct. 1409, 185 L.Ed.2d 495 (2013) (holding that the police can obtain evidence discovered from a plain-view search while "approach[ing] the home in order to speak with the occupant," even if for " ‘the purpose of discovering information’ "). The trial court provided no factual findings on the issue, which is significant given the highly fact-intensive nature of a knock-and-talk inquiry. See, e.g., United States v Jones , 22 F.4th 667, 674 (CA 7, 2022) (conducting a highly fact-intensive analysis and concluding that a knock and talk at 9:00 p.m. was not a seizure); Shroyer v United States , 904 F Supp 2d 914 (ND Ind, 2012) (finding that an initial knock and talk around 10:00 p.m. did not constitute a seizure). Nonetheless, the prosecution seeks to introduce evidence obtained from a search conducted pursuant to a warrant, after the phone was seized pending the warrant and based on information obtained prior to the seizure. That is the central question in the case and is addressed and controlled by Segura v United States , 468 U.S. 796, 104 S.Ct. 3380, 82 L.Ed.2d 599 (1984), as more thoroughly discussed below. Under Segura and surrounding precedents, it is very possible that the police had sufficient justification to seize defendant's entire residence pending a search warrant, but that is not the question here given that the police action was far more limited and was tailored to seizure of his phone.
The prosecution filed leave to appeal in this Court, requesting that the Court remand the case to the trial court for proper fact-finding. In the application for leave, the prosecution clearly and expressly disputed the Court of Appeals’ decision to suppress evidence discovered on defendant's phone. Relying upon the inherent discretion of the trial court, the prosecution explained that with full and proper fact-finding, the trial could hold that the seizure was constitutional under the Fourth Amendment. The prosecution reiterated that the police were "legally permitted to seize defendant's phone without ... defendant's consent" pending a search warrant. In support of this conclusion, the prosecution explained that the "the seizure here affected only defendant's possessory interest in the phone" and that the seizure was reasonable under the Fourth Amendment because it was needed to protect potentially inculpatory evidence in defendant's possession. The prosecution reasoned that if the case were remanded, the trial court should be afforded an opportunity to explore further details and review the record, including additional evidence, as may be needed and relevant for a proper adjudication of the Fourth Amendment question. The parties could supplement and expound upon their initial arguments and presentation on the issue, as occurs in standard litigation to resolve complex legal questions subject to court fact-finding. This is a well-accepted feature of lower court decision-making, given the established inherent authority of trial courts to manage proceedings before them and the presentation of evidence. In all, the prosecution explained that the Court of Appeals abused its discretion by declining to remand the case without a trial court decision on the issue, acted prematurely by analyzing an issue that had not been subject to sufficient factual development and analysis in the lower court, and ultimately provided incorrect legal reasoning on the Fourth Amendment.
See also Maldonado v Ford , 476 Mich. 372, 376, 719 N.W.2d 809 (2006) ("[T]rial courts possess the inherent authority ... to manage their own affairs so as to achieve the orderly and expeditious disposition of cases."); People v Stevens , 230 Mich App 502, 507, 584 N.W.2d 369 (1998) ("[D]ecisions regarding the order and mode of presentation of evidence are within the discretion of the trial court.").
Of course, the Court is not bound by the prosecution's interpretation or perspective on the meaning of the law, including the Fourth Amendment. See In re Finlay , 430 Mich. 590, 595, 424 N.W.2d 272 (1988) ("It is within the inherent power of a court, as the judicial body, to determine the applicable law in each case."); Kimmelman v Heather Downs Mgt. , 278 Mich App 569, 576, 753 N.W.2d 265 (2008) ("[W]e are not bound by a party's statement of law, or even the parties’ stipulations on a point of law.").
II. DISCUSSION
This Court should reverse the Court of Appeals and remand the case to the trial court for proper review of the motion to suppress under the standard order of judicial proceedings. I do not take issue with the Court of Appeals’ conclusion as to the consent of defendant. However, the Court of Appeals’ decision to grant defendant's motion to suppress by resolving in the first instance whether the police could seize the phone pending a search warrant relied upon an incorrect standard of law and amounted to premature appellate analysis without the adequate findings from the trier of fact.
A. THE COURT OF APPEALS RELIED UPON AN INCORRECT STANDARD OF LAW
The Court of Appeals analyzed whether the seizure of defendant's phone was warranted under a theory of "imminent" destruction of evidence. It explained that the police did not observe actions or evidence showing that "destruction or removal of the phone was imminent ...." That is indeed the standard for when the police discover new evidence or information from a search of property. The United States Supreme Court has reasoned that, in such instances, the police must have evidence of "imminent destruction, removal, or concealment" of evidence, or tangible indications that the property is in the process of destruction. For example, in a fast-moving drug distribution investigation, if the police observe a suspect engage in a drug deal, evade the police through a sudden U-turn, and quickly return to the suspect's house where multiple independent sources confirm narcotics are present, the police can enter the home and perform a search. Illegal contraband discovered in the process of such a search is admissible. Alternatively, a cell phone could have evidence of the whereabouts of an abducted child, justifying immediate search of the phone and introduction of new evidence discovered in the process. In those cases, there is direct evidence of "imminent" destruction of incriminating evidence.
People v Beilman , unpublished opinion of the Court of Appeals, issued January 5, 2023, 2023 WL 115073 (Docket No. 359014), p. 6.
United States v Jeffers , 342 U.S. 48, 52, 72 S.Ct. 93, 96 L.Ed. 59 (1951) ; see also Kentucky v King , 563 U.S. 452, 460, 131 S.Ct. 1849, 179 L.Ed.2d 865 (2011) (explaining that "the need to prevent the imminent destruction of evidence" is a "sufficient justification for a warrantless search") (quotation marks and citation omitted).
Ker v California , 374 U.S. 23, 27-29, 40, 83 S.Ct. 1623, 10 L.Ed.2d 726 (1963) (opinion by Clark, J.), id. at 44, 83 S.Ct. 1623 (Harlan, J., concurring in result); see also United States v Ukomadu , 236 F.3d 333, 337-338 (CA 6, 2001) (holding that federal agents could lawfully enter a home and search for illegal narcotics when they reasonably believed the destruction of evidence was imminent after allowing the defendant to take a box of narcotics into the home, given that the police had added a beeper with trip wires to the box and taken a substantial amount of narcotics out of the box, creating the significant possibility that the defendant would know that the box had been tampered with).
See Riley v California , 573 U.S. 373, 402, 134 S.Ct. 2473, 189 L.Ed.2d 430 (2014) (noting that this hypothetical scenario would be covered by the exigent-circumstances exception to the warrant requirement).
That inquiry is completely distinct from the established legal standard for seizure of property for a temporary period of time in order to obtain a valid search warrant, based on evidence and information known prior to the seizure. When there is probable cause to believe that property contains evidence of a crime, the police are not required to stand by and hope that the defendant does not learn of the investigation and destroy or hide evidence. The police can take decisive action to perform seizures as necessary to secure valuable property for the investigation under the specific needs and circumstances of the case. The United States Supreme Court has approved such warrantless temporary seizures based on probable cause for entire personal residences, which stand at the heart of Fourth Amendment protections, going well beyond mere individual pieces of property such as the cell phone at issue in this case. That is the issue in this case, as the prosecution seeks to introduce evidence taken from a valid search warrant after defendant's phone was seized pending the warrant. The prosecution does not seek to introduce any evidence obtained by means of new information discovered during a warrantless search.
Payton v New York , 445 U.S. 573, 588-589, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980) ("To be arrested in the home involves not only the invasion attendant to all arrests but also an invasion of the sanctity of the home.") (quotation marks and citation omitted).
Compare Segura , 468 U.S. at 814, 104 S.Ct. 3380 ("No information obtained during the initial entry or occupation of the apartment was needed or used by the agents to secure the warrant. It is therefore beyond dispute that the information possessed by the agents before they entered the apartment constituted an independent source for the discovery and seizure of the evidence now challenged."), with Jardines , 569 U.S. 1, 133 S.Ct. 1409, 185 L.Ed.2d 495 (2013) (holding that evidence seized pursuant to a warrant that had been obtained on the basis of information taken from a warrantless search of a property using a drug-sniffing dog was subject to suppression under the Fourth Amendment); see also Illinois v McArthur , 531 U.S. 326, 335, 121 S.Ct. 946, 148 L.Ed.2d 838 (2001) (entering the defendant's residence and viewing the defendant inside without a warrant was justified as a "lesser," and thereby justified, restriction as compared to preventing the defendant's reentry and seizure of the entire residence to secure evidence pending a warrant).
The preeminent case on this topic is Segura v United States , 468 U.S. 796, 104 S.Ct. 3380, 82 L.Ed.2d 599 (1984). In that case, the police were investigating the illegal sale of cocaine by the defendant. There were no unique circumstances or evidence that there was a risk of imminent destruction of evidence, nor was there any indication that the defendant knew the police were investigating him. Nonetheless, the police went to the suspect's residence, ordered entry into the residence, and searched the property. After the initial entry, the police remained in the residence to secure the property pending issuance of a search warrant. A search warrant was obtained, and incriminating evidence of cocaine distribution was found as a result of the subsequent search.
In reviewing the challenge to evidence collected from the searches, the Supreme Court accepted as a basic assumption of its analysis that the police had no exigent circumstances to make an initial entry into the residence and conduct a search of the property. Thus, there was no claim or accepted justification that the police were required to search the property to prevent imminent and uncontrollable destruction of evidence, and in any event, no evidence in the record indicated such an emergency. The initial search was illegal, and all newly discovered evidence as a result of that search was inadmissible.
Segura , 468 U.S. at 804, 104 S.Ct. 3380 (explaining that the Court was performing "[n]o review" of the conclusion that the initial search was "not justified by exigent circumstances").
Despite this significant conclusion, the Supreme Court held that the incriminating evidence obtained through a search warrant was admissible because the temporary seizure of the entire residence, after the initial entry and search, was proper. The initial entry and warrantless search, which affected the defendant's privacy interests, were presumed unjustified and illegal. However, the "possessory interests" in the residence, which were affected by the seizure of the property, was "another matter." According to the Supreme Court, the seizure did not violate the Fourth Amendment because officers "having probable cause" could "secure the premises ... to preserve the status quo while others, in good faith, are in the process of obtaining a warrant ...." The police had probable cause, prior to and independent from information taken from the warrantless search, to believe that the defendant's residence contained evidence of illegal cocaine distribution. Thus, the discovery of evidence through a search warrant after a temporary seizure to secure evidence pending a warrant was ultimately lawful.
Id. at 798, 104 S.Ct. 3380.
In so holding, the Supreme Court did not limit or condition the validity of a seizure pending a search warrant on the presence of "imminent" destruction of evidence, which was established law for a warrantless search already found to be inapplicable in the case. Nor did it condition the validity of the seizure on the existence or nonexistence of an illegal warrantless search. The police could seize the defendant's residence on the basis of probable cause and they could lawfully use the evidence temporarily seized pending a search warrant. As the Segura decision explained, the police lawfully obtained the evidence through the "independent source" of a search warrant, distinct from the warrantless search that was not supported by imminent destruction of evidence. Of course, if the destruction of evidence was actually imminent, the seizure of the apartment, the issuance of a warrant, and the Supreme Court's independent legal analysis of seizures pending a warrant would have been completely unnecessary. The police would have been authorized to search the defendant's apartment for evidence of cocaine distribution without a warrant under the exigent-circumstances doctrine.
See, e.g., Jeffers , 342 U.S. at 52, 72 S.Ct. 93 (holding that a warrantless search of a residence was not supported by evidence of "imminent destruction, removal, or concealment of the property").
Analysis provided by Chief Justice Burger explained further the Court's reasoning and holding that seizure of property pending a search warrant can be justified by probable cause, without the necessity of exigent circumstances required to perform a warrantless search. Chief Justice Burger described the fundamental difference between the analysis for searches as opposed to seizures: "A seizure affects only the person's possessory interests; a search affects a person's privacy interests." Consequently, seizures are "generally less intrusive." And the seizure by the police of the defendant's entire personal residence did not warrant a different conclusion. As support for this contention, Chief Justice Burger referred back to the fundamentally different interests between a warrantless search of a home and a warrantless seizure of property:
Segura , 468 U.S. at 806, 104 S.Ct. 3380 (opinion of Burger, J.), citing United States v Jacobsen , 466 U.S. 109, 113 & n 5, 104 S.Ct. 1652, 80 L.Ed.2d 85 (1984) (collecting sources).
Id. , citing United States v Chadwick , 433 U.S. 1, 13-14 & n 8, 97 S.Ct. 2476, 53 L.Ed.2d 538 (1977) ; Chambers v Maroney , 399 U.S. 42, 51-52, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970).
The sanctity of the home is not to be disputed. But the home is sacred in Fourth Amendment terms not primarily because of the occupants’ possessory interests in the premises, but because of their privacy interests in the activities that take place within. The Fourth Amendment protects people, not places.
As we have noted, however, a seizure affects only possessory interests, not privacy interests. Therefore, the heightened protection we accord privacy interests is simply not implicated where a seizure of premises, not a search, is at issue. [ ]
Id. at 810, 104 S.Ct. 3380 (quotation marks, citations, and brackets omitted).
Beyond Segura , the United States Supreme Court has repeatedly affirmed this principle that warrantless searches and temporary warrantless seizures of property have different standards and that, upon a finding of probable cause, the police can take action reasonably tailored to secure property pending issuance of a search warrant. For instance, in Illinois v McArthur , the police were present outside the defendant's residence to supervise as the defendant's wife moved her belongings out of the residence. As she retrieved her belongings, she told the police that the defendant was hiding drugs in the residence. The police then entered onto the porch of the residence and knocked on a door. The defendant answered and the police informed the defendant of the accusation; the defendant declined to permit the police to search the house consensually. There was no direct evidence that the defendant previously knew the police suspected that the defendant possessed contraband. And there was no evidence or indication in the record that the defendant had taken any direct or observable action whatsoever to destroy the potential contraband or place inculpatory evidence at risk of imminent removal. All the police knew was that the defendant was suspected of possessing illegal drugs in his home, that the defendant could have possibly inferred that his wife told the police about the narcotics (despite the police already being on the scene for a completely unrelated domestic dispute), and that the defendant could have possibly wished to destroy the evidence if he inferred the police might suspect him of controlled-substance possession. Given the lack of imminent destruction of evidence, the police did not enter into the defendant's residence and perform an immediate search inside his house. Instead, the police removed the defendant from his residence and from his front door, secured the residence by preventing anyone from entering, and even followed the defendant into his house while the warrant was pending to supervise all the defendant's entries. Upon seizing the defendant's entire home, the police sought a search warrant, which was obtained and subsequently executed.
Chadwick , 433 U.S. at 13, 14 n 8, 97 S.Ct. 2476 (explaining that seizure of a footlocker believed to contain incriminating evidence was "sufficient to guard against any risk that evidence might be lost" and noting that "[a] search of the interior was therefore a far greater intrusion into Fourth Amendment values than the impoundment of the footlocker"); California v Acevedo , 500 U.S. 565, 575, 111 S.Ct. 1982, 114 L.Ed.2d 619 (1991) (reasoning, in the context of analyzing the reasonableness of a search of property contained in an automobile, that "[l]aw enforcement officers may seize a container and hold it until they obtain a search warrant"), citing Chadwick , 433 U.S. at 13, 97 S.Ct. 2476 ; Georgia v Randolph , 547 U.S. 103, 116 n 6, 126 S.Ct. 1515, 164 L.Ed.2d 208 (2006) (distinguishing the temporary seizure of property pending a search warrant from a situation where "a fairly perceived need to act on the spot to preserve evidence" justifies a warrantless search); Florida v White , 526 U.S. 559, 566, 119 S.Ct. 1555, 143 L.Ed.2d 748 (1999) (holding that a warrantless seizure of a vehicle parked on private property on the basis of probable cause to believe it contained forfeitable contraband did not violate the Fourth Amendment); see also Arkansas v Sanders , 442 U.S. 753, 99 S.Ct. 2586, 61 L.Ed.2d 235 (1979), abrogated on other grounds by Acevedo , 500 U.S. 565, 111 S.Ct. 1982, 114 L.Ed.2d 619 (holding that, even if the police lacked justification to perform a search of a suitcase, they could seize it pending a search warrant with probable cause, even though there was no immediate threat of destruction of the evidence); Mincey v Arizona , 437 U.S. 385, 98 S.Ct. 2408, 57 L.Ed.2d 290 (1978) (holding that a police "guard" placed at a residence, after the occupants were removed, in order to prevent the destruction of evidence undermined the need to perform an immediate search of the residence under exigent circumstances); Jeffers , 342 U.S. at 52, 72 S.Ct. 93 (concluding that, although the police could not conduct a search of a hotel room when there was no indication of "imminent destruction" of evidence, the police knowing that others may attempt to enter, could simply "guard[ ] the door" of the entry to prevent destruction of evidence).
McArthur , 531 U.S. 326, 121 S.Ct. 946, 148 L.Ed.2d 838.
Compare People v Blasius , 435 Mich. 573, 594, 459 N.W.2d 906 (1990) (explaining that a "mere possibility" that evidence is threatened with destruction does not justify warrantless searches of a home under the exigent-circumstances doctrine and holding that actual observations of illicit substances moving out of a residence in real time, combined with credible information that the illicit substances at issue were being moved out of the house and would be gone very soon, justified an immediate entry and search).
After the seizure occurred but before a search warrant was issued, the police entered the defendant's residence "two or three times" to accompany the defendant to perform various menial tasks. Like in this case, the prosecution in McArthur did not seek to introduce evidence obtained through a plain-view search or observation conducted in the process of the seizure, but instead sought to introduce evidence obtained from a valid search warrant after the seizure.
The defendant in McArthur moved to suppress evidence found at the residence after the temporary seizure, and the Supreme Court of the United States thoroughly rejected that motion. In so doing, the Supreme Court did not explain or hold that the police could have simply searched the property under threat of imminent destruction of evidence, which would have made the temporary seizure and search warrant unnecessary. Instead, the Court examined the circumstances of the case and held that the temporary, warrantless seizure of the defendant's entire residence pending a search warrant was constitutional. The Court cited the general principles of Fourth Amendment reasonableness, which are flexible and can respond to different circumstances depending on case-specific needs and exigencies. However, the Court concluded that the police had probable cause to seize the residence, the defendant could have acted to destroy evidence (even if there was no demonstrable indication that the defendant was acting to imminently destroy the evidence), and the seizure occurred only until the police could reasonably obtain a search warrant. The Court cited Segura and expressly contrasted the seizure with a search of the residence, reiterating that a seizure of defendant's residence pending a warrant was "significantly less restrictive" and "intrusive" than a warrantless search of his home for drugs. Ultimately, the Court reiterated the basic principle of Segura : "a temporary seizure that was supported by probable cause and was designed to prevent the loss of evidence while the police diligently obtained a warrant in a reasonable period of time" is not a violation of the Fourth Amendment. At no point in the McArthur opinion did the Supreme Court overturn Segura , or indicate that the police can only seize property pending a search warrant if the police can also perform and complete a warrantless search of the property, a holding that would conflict with decades of established law.
McArthur , 531 U.S. at 332, 336, 121 S.Ct. 946.
Id. at 334, 121 S.Ct. 946.
Similarly, in Riley v California , the Supreme Court examined the legality of a search of a cell phone incident to a lawful arrest. When the police had probable cause and the ability to obtain a cell phone potentially including incriminating evidence, the Supreme Court reiterated that "officers could have seized and secured their cell phones to prevent destruction of evidence while seeking a warrant." This is despite the lack of evidence in the record that the defendants had taken any observable actions to destroy evidence on the phone or presented an imminent risk to the preservation of the evidence. In fact, the Court distinguished this accepted police practice of seizing evidence pending a warrant from a search incident to arrest and a warrantless search under the exigent-circumstances doctrine. Neither standard justified the search of a phone in a routine criminal investigation such as the investigations at issue in Riley , but such circumstances did justify a temporary seizure pending a warrant.
Riley , 573 U.S. 373, 134 S.Ct. 2473, 189 L.Ed.2d 430.
Id. at 388, 134 S.Ct. 2473.
In fact, the accepted practice of temporary seizures pending a search warrant vindicates individuals’ Fourth Amendment rights by providing a readily available and reasonable alternative to warrantless searches, thereby undermining police arguments of necessity. See Chadwick , 433 U.S. at 13, 97 S.Ct. 2476 ("With the footlocker safely immobilized, it was unreasonable to undertake the additional and greater intrusion of a search without a warrant."); Riley , 573 U.S. at 388, 134 S.Ct. 2473 ("[O]nce law enforcement officers have secured a cell phone, there is no longer any risk that the arrestee himself will be able to delete incriminating data from the phone."); Randolph , 547 U.S. at 116 n 6, 126 S.Ct. 1515 (explaining that a warrantless search is permitted as an extraordinary measure after the police could not prevent destruction of evidence through temporary seizure).
Federal circuit courts have repeatedly applied and emphasized the holding of Segura in reviewing temporary seizures of property pending the issuance of a search warrant. As the United States Court of Appeals for the Seventh Circuit has aptly explained, "[t]he presence (or not) of exigent circumstances" such as imminent destruction of evidence are "beside the point." Temporary seizures under Segura do not require an "emergency," unlike warrantless searches. They require "probable cause at the moment of [the seizure]" and police action reasonably tailored in scope and time to secure incriminating evidence. The Sixth Circuit has been even more concise: the United States Supreme Court has approved the temporary seizures of property under reasonable suspicion , and "seizures based on probable cause have long been lawful."
United States v Alexander , 573 F.3d 465, 476 (CA 7, 2009) (affirming a seizure of an entire residence on suspicion of illegal drug possession, without any indication, whether from movements, sounds, or actions, that evidence was at risk of imminent destruction).
United States v Etchin , 614 F.3d 726, 735 (CA 7, 2010) (explaining that the Court in Segura approved of the seizure despite the fact that there were "no exigent circumstances").
Id. at 734 (" Segura holds that officers who enter and seize a home to preserve the status quo while waiting for a search warrant do not commit an independently sanctionable violation of the Fourth Amendment as long as they had probable cause at the moment of entry and the seizure is not unreasonably long."); see also Alexander , 573 F.3d at 476 ("The Court also held that officers who have probable cause may enter and secure the premises from within to preserve the status quo while a search warrant is obtained without violating the Fourth Amendment's prohibition of unreasonable seizures."); United States v Carrion , 809 F.2d 1120, 1129 (CA 5, 1987) ("The securing operation, which followed [the suspect's] arrest, the entry, and the limited security search, was based on probable cause and merely preserved the status quo ...."); United States v Song Ja Cha , 597 F.3d 995, 999 (CA 9, 2010) ("It is undisputed that the police officers had probable cause and that the officers were allowed to seize the Blue House Lounge and Cha residence for a reasonable time while they obtained a warrant."); United States v Holzman , 871 F.2d 1496, 1507 (CA 9, 1989), overruled in part on other grounds by Horton v California , 496 U.S. 128, 110 S.Ct. 2301, 110 L.Ed.2d 112 (1990) ("Nor is our conclusion altered by our previous finding that exigent circumstances did not exist. The police were entitled to maintain the status quo even though there was no indication that evidence would be lost, destroyed, or removed during the time required to obtain a search warrant.") (quotation marks and citations omitted).
United States v Respress , 9 F.3d 483, 486 (CA 6, 1993), citing United States v Place , 462 U.S. 696, 103 S.Ct. 2637, 77 L.Ed.2d 110 (1983) (holding that temporary seizure of property under merely reasonable suspicion pending a search warrant was constitutional but could not be extended without sufficient justification).
The Supreme Court of the United States has never overturned or repudiated Segura , and the Court has never held, in conflict with Segura , that "imminent" destruction of evidence as required for a warrantless search is required to perform a temporary seizure of property pending a search warrant. For its part, the Michigan Supreme Court has never repudiated, critiqued, or declined to apply Segura and its surrounding precedents for cases in which they control. Nonetheless, the Court of Appeals in this case explicitly and improperly relied upon the standard for warrantless searches under exigent circumstances to resolve the instant seizure of defendant's phone pending a search warrant. It cited to the need for an "imminent" destruction of evidence to perform a seizure pending issuance of a search warrant and concluded that the police in this case had no reason to believe that destruction of the evidence on defendant's phone was "imminent." Referring directly to the standard for warrantless searches, the Court of Appeals stated that the police did not observe defendant "attempt[ ] removal or destruction of the phone" or other demonstrable facts of "immediate destruction ... of the phone." Yet the extraordinary and immediate justifications needed to perform a warrantless search simply do not apply to seizures of property pending a search warrant. And the Court of Appeals failed to recognize that the prosecution in this case did not seek to introduce any evidence derived from new information discovered from a warrantless search. The Court of Appeals did not consider or analyze the limited nature of a seizure, as compared to a search, nor did it address the intricate and careful balancing of privacy and possessory rights with the need for proper law enforcement investigation.
The United States Supreme Court has admonished lower courts that they may not "construe" its decisions as overruling "by implication" established precedent simply because the lower court infers different reasoning from the Supreme Court's subsequent decisions. Agostini v Felton , 521 U.S. 203, 237, 117 S.Ct. 1997, 138 L.Ed.2d 391 (1997), citing Rodriguez de Quijas v Shearson/American Express, Inc , 490 U.S. 477, 484, 109 S.Ct. 1917, 104 L.Ed.2d 526 (1989).
The Court of Appeals relied heavily upon Blasius , 435 Mich. 573, 459 N.W.2d 906. But that case is readily distinguishable. Blasius addressed and correctly applied established caselaw for warrantless entry and search of a residence. In Blasius , the police entered the defendant's residence, conducted a pat-down search of the defendant, and performed a protective sweep of the residence, in the process discovering incriminating evidence. After concluding the initial entry and search, the police then obtained a search warrant to search the remainder of the residence. The Michigan Supreme Court considered whether exigent circumstances for "residential searches without warrants" justified the initial entry and search by police. Id. at 583, 459 N.W.2d 906 ; see also id. at 592-593, 459 N.W.2d 906 ("The sparse analysis available from this Court and the apparent confusion of the courts below in analyzing this case illustrate the need for us to articulate some standards to determine when exigent circumstances exist justifying an entry and search without a warrant. ") (emphasis added). The Court held that exigent circumstances justified the initial warrantless search of the property. There was also an initial entry and search and a subsequent seizure pending a search warrant in Segura . However, the initial entry and search, which the Court in Blasius held was legal to prevent the imminent destruction of evidence, was by contrast held to be illegal in Segura . Yet, despite not meeting the established standard for warrantless searches (requiring "imminent" destruction of evidence), the United States Supreme Court held that the subsequent seizure of the premises pending a search warrant was valid upon a finding of "probable cause." Segura , 468 U.S. at 798, 104 S.Ct. 3380 (noting that the defendant's "possessory interests" were "another matter"). The Michigan Supreme Court did not address the validity of the seizure even if the initial entry and search was unjustified as did Segura ; it did not address the independent-source doctrine as applied to the seizure pending a search warrant as did Segura ; and it neither cited to nor analyzed the established law on temporary seizures established under Segura and surrounding United States Supreme Court precedents. See notes 17, 21, 23, and 26 through 29 of this statement. This was abundantly rational because there was no constitutional violation based on the initial entry and search, upon which the defendant in Blasius based his exclusion arguments. Blasius , 435 Mich. at 582, 459 N.W.2d 906 (explaining that the Court of Appeals accepted the defendant's arguments that "all the evidence seized at the defendant's residence" was "tainted by the initial illegal entry by the police"). The Blasius decision correctly analyzed the law on warrantless searches, concluding that "imminent threat of destruction of evidence" or "evidence in the process of destruction" was required. Blasius , 435 Mich. at 587, 459 N.W.2d 906. However, the decision did not consider and does not control circumstances where the police temporarily seize property such as a cell phone without performing a search. In those circumstances, established United States Supreme Court precedent holds that the police may seize property on the existence of probable cause pending a search warrant, without the emergency and heightened circumstances for destruction of evidence that is required for warrantless searches. Binding caselaw from the United States Supreme Court, not the Blasius decision, controls the outcome of this case.
Beilman , unpub. op. at 6.
The Court of Appeals’ application of the incorrect legal standard is significant. There is no question in this case that the police had substantial evidence to support the existence of defendant's criminal behavior and defendant's possession of incriminating evidence on his phone prior to its seizure. The police had credible statements from an alleged victim, who was identifiable, whom the police had observed in person, and who had given a statement. The girl at issue described in detail repeated and strategic patterns of isolation, sexual abuse, and suppression of reporting. She identified defendant as the perpetrator of the abuse, and her story provided a clear picture that defendant had the opportunity and ability to commit the abuse as a supervising authority figure, both of herself and of his daughter. And the police here were deliberate, careful, and decisive. They did not simply go to defendant's residence and seize his property on the basis of a mere accusation over the phone. They approached defendant, allowed him to provide his explanation or statement, and confirmed in person the detailed description of the alleged abuse from the girl at issue prior to taking any action to seize defendant's property. The police action to seize defendant's phone occurred within three hours of receiving an initial report of abuse, and in the process the police conducted thorough investigations, received statements, and commuted between various locations in the area. Finally, defendant does not even dispute that the police had probable cause to believe his phone had incriminating evidence of child abuse. And a magistrate presented with the record evidence in this case believed probable cause existed and therefore issued a search warrant.
Thus, the uncontested record demonstrates that police were aware that defendant was potentially a repeat sexual abuser of at least one child, that he had access to and the ability to commit sexual abuse of children who may be under his supervision, that he potentially possessed highly incriminating evidence of his abuse on his personal phone, and that he had a pattern and history of acting to manipulate and conceal evidence of the abuse from others. The potential punishment for convicted sexual abuse of children such as the 12-year-old girl at issue is significant. There is also no dispute that the initial interaction with the police, whereby the police called defendant and then discussed the case in person, was permissible and not constitutionally suspect. Thus, the police were also aware that defendant had denied any connection to abuse and had suspected that it could only be the girl at issue who accused him of abuse. Furthermore, given the seriousness of the allegations, the police involvement, and the fact that the girl and defendant's daughter were friends, there was a very real possibility that defendant would learn of the girl's report after the police began their investigation, whether through hearsay reports, the girl or her mother, or others in the community. Defendant had ready and immediate access to his phone, and he could have deleted without any difficulty highly relevant and incriminating evidence, whether through concern of police inquiry or as a matter of course and personal discretion, knowing that possession of the material may result in serious criminal charges. It is nonetheless undisputed that defendant was aware of potential accusations and suspected that the girl at issue had informed the police of the alleged abuse. The circumstances at issue presented demonstrable incentives, a motive, and the opportunity for the destruction of evidence necessary for the effective prosecution of child sexual abuse. This all while, in manner of several hours, the police were taking careful and deliberate steps to confirm facts supporting a finding of criminality, to back-up justification to seize or search the defendant's property, and to determine whether and to what extent police action against the defendant was warranted.
MCL 750.520b(2) (providing that criminal sexual conduct in the first degree is punishable, at a minimum, by "imprisonment for life or for any term of years").
Despite these rapidly developing and serious circumstances, the police did not perform a warrantless entry into defendant's home, even if they ultimately had probable cause to believe that defendant had committed serious child sexual abuse and possessed electronic evidence of the abuse in his home. The police did not collect evidence from a warrantless search of defendant's home, nor did they collect evidence from a warrantless search of defendant's phone. The police obtained no new information not otherwise known to them through a warrantless search of defendant's property. All of the evidence used to justify a search of defendant's phone was collected prior to the seizure of the phone, and all of the evidence at issue was obtained solely from a search of defendant's phone pursuant to that warrant. Moreover, the police did not even seize and prevent use and entry into defendant's entire residence, which was expressly approved in Segura and McArthur . Given the serious and quickly evolving facts in this case, it is very possible that the police could have secured defendant's residence and the evidence therein using a seizure pending a search warrant. But the police in this case took a far more tailored action by seizing only his phone, thereby limiting the interference with defendant's personal rights and interests.
Just like the police in Segura , McArthur , and Riley , the police here had substantial evidence of criminal wrongdoing contained in a specific and limited piece of property, with the objective and present realization that defendant could access to and readily destroy evidence contained within the property. As the United States Supreme Court recognized in Segura and repeatedly thereafter in cases such as McArthur and Riley , the police could take reasonably tailored action, short of an immediate warrantless search, by securing with probable cause the potentially incriminating evidence pending a search warrant. The police here carefully tailored their actions to the needs of the case, opting to seize, rather than search, defendant's phone and only defendant's phone, and only for the limited purpose of securing valuable evidence, which defendant had a high incentive and ready access to eliminate.
In this case, the police performed a limited intrusion of defendant's "possessory interests" by performing a seizure, which the Supreme Court has repeatedly recognized is "significantly less restrictive" and "intrusive" than a warrantless search. The existence of imminent destruction of evidence, emergency circumstances, or other standards required for warrantless searches is simply "beside the point," as established Supreme Court precedent makes abundantly clear. The Court of Appeals did not recognize any of these legal factors and considerations lying at the heart of this case when it analyzed the seizure at issue. For that reason, the Court of Appeals decision should be reversed. Nonetheless, I do not believe that this Court should address the issue and hold that the search was justified under the available record. Instead, as explained below, the proper remedy is to remand the case for factual development at the trial court as the prosecution requests.
Segura , 468 U.S. at 798, 104 S.Ct. 3380.
McArthur , 531 U.S. at 332, 336, 121 S.Ct. 946 ; see Riley , 573 U.S. at 388, 134 S.Ct. 2473 ; Chadwick , 433 U.S. at 13, 97 S.Ct. 2476 ; Acevedo , 500 U.S. at 575, 111 S.Ct. 1982 ; Randolph , 547 U.S. at 116 n 6, 126 S.Ct. 1515 ; see also Etchin , 614 F.3d at 735 ; Alexander , 573 F.3d at 476 ; Carrion , 809 F.2d at 1129 ; Song Ja Cha , 597 F.3d at 999 ; Respress , 9 F.3d at 486.
Alexander , 573 F.3d at 476.
An error of law on temporary seizures of property pending a search warrant was inherent to the Court of Appeals’ decision to reverse the trial court without a remand for factual findings. The Court of Appeals expressly relied upon an incorrect understanding of the Fourth Amendment to deny a remand, citing the purported lack of evidence for "immediate destruction or removal of the phone." Beilman , unpub. op. at 6. That legal error alone warrants reversal. See, e.g., Pirgu v United Servs Auto Ass'n , 499 Mich. 269, 274, 884 N.W.2d 257 (2016) (explaining that a court "necessarily abuses its discretion when it makes an error of law").
B. THE COURT OF APPEALS RELIED UPON IMPROPER PROCEDURE
Given that the Court of Appeals analyzed and applied an incorrect legal standard, this Court should remand the case to the trial court, which reviewed the evidence at issue and is thoroughly familiar with the record, to make proper factual findings in the ordinary course of proceedings. The trial court did not in any way address, consider, analyze, or provide factual findings for justification of the police seizure of defendant's phone, even if defendant did not consent to the seizure. The trial court did not address the circumstances leading up to the seizure, the needs and circumstances of the police in obtaining evidence of child abuse on defendant's phone, the tailored and limited nature of the seizure, or the scope and reasonableness of the seizure after the phone was obtained by the police. There are no factual findings or analysis on the potential concerns the police could objectively have in this record of defendant's having access to and destroying evidence on his phone. Instead, the trial court focused its factual investigation and questioning, its discussion with attorneys, and its ultimate reasoning solely on whether defendant gave the police consent to seize the phone. The Court of Appeals concluded that the trial court's analysis on consent was incorrect. But that holding says nothing about whether the seizure was otherwise justified or whether the trial court provided adequate findings on issues other than consent. Nonetheless, the Court of Appeals examined the record in the first instance and concluded, in its own view, that there was insufficient evidence of circumstances justifying seizure pending a search warrant.
Not only did the Court of Appeals apply the wrong legal standard, it also imprudently made factual findings and analysis that the trial court could have and should have addressed in the first instance. It is accepted law in this state that trial courts, not courts of appeal, are the fact-finders in motions to suppress. Trial courts are tasked to review their own record, docket, and party submissions; hear in-court testimony; weigh the body of evidence; and provide findings as to the facts and circumstances of a case. A decision to deny a motion to suppress is reviewed on appeal for "clear error," and appellate courts review questions of law de novo. Like a trier of fact at a jury trial, an appellate court cannot "interfere with the trier of fact's role of determining the weight of the evidence or the credibility of witnesses." Appellate courts do not "reweigh the evidence presented in the court below" and instead must respect the trial court's role as "a trier of fact to judge credibility, resolve conflicts in testimony, assess the weight to be given the evidence, and determine the factual content of ambiguous testimony[.]" Ultimately, while an appellate court can reverse a trial court's findings of fact if the appellate court has a "definite and firm conviction" that the finding is incorrect, the appellate court cannot supply its own findings of fact that contradict the trial court's decision or were otherwise not made by the trial court. This standard not only vindicates established and efficient systems of adjudication, but also recognizes basic realities of competency and focus. As Chief Justice Roberts of the United States Supreme Court has explained: " ‘While we largely read briefs for a living, [trial courts] largely assess the credibility of parties and witnesses for a living.’ "
People v Sobczak-Obetts , 463 Mich. 687, 694, 625 N.W.2d 764 (2001) ; accord People v Slaughter , 489 Mich. 302, 310, 803 N.W.2d 171 (2011) ("A court's factual findings at a suppression hearing are reviewed for clear error, but the application of the underlying law ... is reviewed de novo.").
People v Eisen , 296 Mich App 326, 331, 820 N.W.2d 229 (2012) (quotation marks and citation omitted).
5 Am. Jur. 2d, Appellate Review, § 581, pp. 413-414 ; § 597, p. 428.
Nat'l Wildlife Federation v Dep't of Environmental Quality , 306 Mich App 369, 373, 856 N.W.2d 394 (2014).
People v Reese , 491 Mich. 127, 159, 815 N.W.2d 85 (2012) (explaining that an appellate court cannot "simply substitute[ ] its interpretation of the testimony" on the record in place of a trial court); Icicle Seafoods Inc v Worthington , 475 U.S. 709, 714, 106 S.Ct. 1527, 89 L.Ed.2d 739 (1986) ("If the Court of Appeals believed that the District Court had failed to make findings of fact essential to a proper resolution of the legal question, it should have remanded to the District Court to make those findings. If it was of the view that the findings of the District Court were ‘clearly erroneous’ ..., it could have set them aside on that basis. If it believed that the District Court's factual findings were unassailable, but that the proper rule of law was misapplied to those findings, it could have reversed the District Court's judgment. But it should not simply have made factual findings on its own. ") (emphasis added); 5 Am. Jur. 2d, Appellate Review, § 591, pp. 422-423 (noting that when reviewing a trial court's decision for clear error, "the appellate court will not retry issues of fact or substitute its judgment with respect to such issues for that of the trial court, nor weigh the evidence de novo").
June Med. Serv. LLC v Russo , 591 U.S. ––––, ––––, 140 S Ct 2103, 2141, 207 L.Ed.2d 566 (2020) (Roberts, C.J., concurring), overruled on other grounds by Dobbs v Jackson Women's Health Org. , 597 U.S. ––––, 142 S Ct 2228, 213 L.Ed.2d 545 (2022), quoting Taglieri v Monasky , 907 F.3d 404, 408 (CA 6, 2018) ; see also Reese , 491 Mich. at 159-160, 815 N.W.2d 85 ("This standard is higher than the standard for reviewing questions of law because the finder of fact often must choose between conflicting and contradictory testimony ...."); Anderson v Bessemer City , 470 U.S. 564, 574-575, 105 S.Ct. 1504, 84 L.Ed.2d 518 (1985) ("The trial judge's major role is the determination of fact, and with experience in fulfilling that role comes expertise. Duplication of the trial judge's efforts in the court of appeals would very likely contribute only negligibly to the accuracy of fact determination at a huge cost in diversion of judicial resources.").
The Court of Appeals did not conclude that findings from the trial court lacked any support in the evidence and were clearly erroneous. Nor could it. The trial court made no findings on the circumstances justifying the police investigation; their discussions with the girl, her mother, and defendant; the extent of support for the belief among the police that defendant's phone possessed valuable and easily disposable evidence; and their interests in preserving evidence through a limited seizure pending a search warrant. Yet it is well understood that Fourth Amendment reasonableness questions are extraordinarily "fact-intensive." Given that at the heart of the inquiry is an unenumerated concept of "reasonableness," Fourth Amendment issues are perhaps some of the most fact-intensive questions of constitutional law. This is even more so when reviewing on-the-ground action by the police to respond to the demands of evolving facts, to investigate serious crime, and to secure evidence for the pursuit of justice and the protection of the public without the benefit of time or 20/20 hindsight.
People v Mullen , 282 Mich App 14, 21, 762 N.W.2d 170 (2008) ("Whether a search is reasonable is a fact-intensive determination and must be measured by examining the totality of the circumstances."); United States v Coleman , 923 F.3d 450, 455 (CA 6, 2019) (explaining that Fourth Amendment reasonableness inquiries, in the context of a case on a home search, is a "fact-intensive analysis conducted on a case-by-case basis") (quotation marks and citation omitted).
Brigham City v Stuart , 547 U.S. 398, 403, 126 S.Ct. 1943, 164 L.Ed.2d 650 (2006) ("[T]he ultimate touchstone of the Fourth Amendment is reasonableness ....") (quotation marks and citation omitted).
Bell v Irwin , 321 F.3d 637, 640 (CA 7, 2003) ("It is easy in retrospect to say that officers should have waited, or should have used some other maneuver—these propositions cannot be falsified—but ... the fourth amendment does not require second-guessing if a reasonable officer making decisions under uncertainty and the press of time would have perceived a need to act.").
Appellate courts, especially those applying federal law, have routinely declined to rule on complex and highly fact-intensive questions without the benefit of trial court findings, favoring the more restrained course of remanding for additional lower court reasoning. Given that trial courts are the sole finders of fact and appellate courts review de novo only questions of law, that is the proper course of action when reviewing motions to suppress. There was an abundant record available to the Court of Appeals to indicate that there was a real question as to whether the temporary seizure of defendant's phone was justified, thus rendering the evidence of child sexual acts discovered from the independent search warrant admissible. Sitting in a far superior position to review the record, docket, and testimony, the trial court should have provided the findings necessary to determine, considering the evidence of child sexual abuse obtained against the defendant, if the police were justified in performing the seizure (or even if there was a risk of imminent destruction of evidence). Instead, the Court of Appeals took upon itself the role of both appellate court and finder of fact, concluding that there was "no evidence" in its own analysis of the cold record on appeal to believe that destruction of evidence on defendant's phone was "imminent." In so doing, the Court of Appeals failed to properly perform the role of either appellate or trial court. Contrary to the factual conclusions of the Court of Appeals, there was abundant indication on this record that the police had detailed and credible evidence that defendant had engaged, in the very recent past, in serious criminal behavior involving the sexual abuse of a child; that he not only had access to and supervised children but that he potentially acted strategically to suppress the disclosure of evidence indicating abuse; that he had highly valuable incriminating evidence in his possession that he could readily destroy without any interference or recovery; and that defendant could have, and in fact did, discover the investigation and had a clear incentive to destroy any incriminating evidence whether in the regular course of behavior or out of fear of police discovery. On appeal, it is not appropriate at this stage to make determinative findings of fact as to the circumstances and necessity of police action, whether favorable or unfavorable to the legality of the ultimate seizure. It is sufficient to conclude that this case presents serious and disputable questions of factual adjudication requiring further inquiry and proceedings below. The case should be remanded to the trial court to provide reasoning under the correct standard of law, established primarily under the United States Supreme Court decision in Segura .
See, e.g., United States v Outland , 993 F.3d 1017, 1023 (CA 7, 2021) (refusing to decide whether a motion to suppress a confession should be granted despite having an extensive record of a defendant's statement to the police, noting that "resolution of a motion to suppress is almost always a fact-specific inquiry" and that the trial court is the primary trier of fact) (quotation marks and citation omitted); United States v Carr , 355 F Appx 943, 945-946 (CA 6, 2009) (reviewing the available factual record and express findings on the actions taken by the police to stop and arrest the defendant but declining to provide a conclusion on whether the stop was justified under the Fourth Amendment and instead remanding for a proper factual review before the trial court under the correct legal standard); United States v Porter , 375 F Appx 448, 449-450 (CA 6, 2010) (declining to determine whether there was reasonable suspicion that the defendant possessed a weapon—even though the court had an extensive record of the defendant's interactions with the police, including the investigation leading up to a traffic stop and the defendant's behavior—given the trial court's error of law in concluding that reasonable suspicion was not necessary and remanding the case for factual findings from the trial court); United States v Esquivel-Rios , 725 F.3d 1231, 1238 (CA 10, 2013) (Gorsuch, J) (explaining that the trial court, in issuing findings on reasonable suspicion to conduct a stop, failed to consider valuable and material evidence that weighed against the stop and noting that although the court was "armed ... with a candid appreciation of the facts in the record," the more "prudent" and "restrained" course would be to remand the issue to the trial court to again consider the issue and provide findings and further explaining that appellate courts lacked the necessary fact-finding powers and that the trial court could explore more fully the issues it missed); United States v Gaines , 918 F.3d 793, 803 (CA 10, 2019) (remanding for findings on additional facts advanced by the parties as to whether the police had reasonable suspicion to conduct a stop despite having an extensive record and video evidence of the stop); United States v Byrd , 742 F Appx 587, 592 (CA 3, 2018) (declining to address a Fourth Amendment question presented in a motion to suppress, despite the availability of a record, because the trial court did not first provide findings and "remand is appropriate where ... ‘the issue to be addressed is not a purely legal question and requires ... fact finding’ "), quoting Hudson United Bank v LiTenda Mtg Corp , 142 F.3d 151, 159 (CA 3, 1998) ; Patsy v Florida Bd of Regents , 457 U.S. 496, 516 n 19, 102 S.Ct. 2557, 73 L.Ed.2d 172 (1982) (holding that for questions of sovereign immunity that were not fully briefed before the Court, which required in-depth analysis of fact and state law, the trial court was in the "best position to address [the issue] in the first instance"); Byrd v United States , 584 U.S. ––––, ––––, 138 S Ct 1518, 1527, 200 L.Ed.2d 805 (2018) (declining to decide an issue involving complex questions of Fourth Amendment law without prior lower court review and analysis, explaining that it is "a court of review, not of first view") (quotation marks and citation omitted); Cerros v Steel Technologies, Inc , 288 F.3d 1040, 1047-1048 (CA 7, 2002) (declining to provide a definitive ruling on a complex factual question of civil discrimination and remanding the issue for further factual findings by the trial court, although noting that a substantial record supported the opposite conclusion from that reached by the trial court); United Church of Christ v Gateway Econ. Dev. Corp of Greater Cleveland , 383 F.3d 449, 455 (CA 6, 2004) (refusing to decide the "highly fact-bound" question of whether a restriction on certain public gatherings were reasonable time, place, and manner restrictions despite having a significant record of the nature of the restriction at issue, instead remanding for further findings); 9C Wright & Miller, Federal Practice and Procedure (3d ed.), § 2577, pp. 290, 297 ("As the copious citations in the notes below indicate, the court of appeals may vacate the judgment and remand the case to the district court for findings if the trial court has failed to make findings when they are required by the rule, and in the same vein, the case may be returned to the district court if the findings that it has made are not sufficient for a clear understanding and effective review of the basis of the district court's exercise of discretion."); 5 Am. Jur. 2d, Appellate Review, § 733, p. 577 ("[A]n appellate court must vacate the judgment and remand the case for proper findings if a district court makes only general, conclusory, or inexact findings [of fact] ....").
III. CONCLUSION
Regardless of whether the Court of Appeals was correct that defendant did not provide the police with consent to seize his phone, the Court of Appeals’ ultimate holding was wrong on substance and wrong on procedure. The Court of Appeals applied an incorrect standard of law and declined to allow the trial court to perform its primary role as fact-finder for motions to suppress evidence. The case should be remanded to the trial court to consider whether the temporary seizure of defendant's phone was justified under Segura and supporting precedents. For the foregoing reasons, I dissent from the denial of leave.