Opinion
SC 166366 COA 364083
06-14-2024
PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellant, v. FLOYD RUSSELL GALLOWAY, JR., Defendant-Appellee.
Oakland CC: 2019-272265-FC
Elizabeth T. Clement, Chief Justice, Brian K. Zahra, David F. Viviano, Richard H. Bernstein, Megan K. Cavanagh, Elizabeth M. Welch, Kyra H. Bolden, Justices
ORDER
On order of the Court, the application for leave to appeal the September 21, 2023 judgment of the Court of Appeals is considered, and it is DENIED, because we are not persuaded that the questions presented should be reviewed by this Court.
Viviano, J. (dissenting).
I dissent from the decision to deny leave. This case raises two jurisprudentially significant issues that this Court should consider. First, whether the exclusionary rule should apply here in light of the civil and criminal liability that are available for the alleged officer misconduct at issue. It is well established that "[t]he suppression of evidence should be used only as a last resort." People v Frazier, 478 Mich. 231, 247 (2007); see also Herring v United States, 555 U.S. 135, 140 (2009) ("[E]xclusion has always been our last resort, not our first impulse[.]") (quotation marks and citation omitted). "Application of the rule has been restricted to those areas where its remedial objectives are thought most efficaciously served, that is, where its deterrence benefits outweigh its substantial social costs." Frazier, 478 Mich. at 249 (quotation marks, brackets, and citations omitted). The Supreme Court has "never suggested that the exclusionary rule must apply in every circumstance in which it might provide marginal deterrence." Herring, 555 U.S. at 141 (quotation marks and citation omitted). Rather," '[t]o the extent that application of the exclusionary rule could provide some incremental deterrent, that possible benefit must be weighed against [its] substantial social costs.'" Id., quoting Illinois v Krull, 480 U.S. 340, 352-353 (1987) (second alteration in original).
As the Court of Appeals recognized, "[i]f a defendant's right to due process has been violated, then the next question is what remedy should be imposed? The remedy depends critically on the violation and context." People v Joly, 336 Mich.App. 388, 400 (2021); see also People v Galloway, unpublished per curiam opinion of the Court of Appeals, issued September 21, 2023 (Docket No. 364083), p 7 ("Having found a violation of due process, the question of the appropriate remedy remains."), citing Joly, 336 Mich.App. at 400.
Michigan statutes provide significant civil and criminal liability that deter a police officer from sharing confidential information gained from a polygraph examiner as a result of a polygraph examination, which is the alleged misconduct at issue here. Specifically, MCL 338.1728(3) of the Forensic Polygraph Examiners Act, MCL 338.1701 et seq., provides that "[a]ny recipient of information, report or results from a polygraph examiner, except for the person tested, shall not provide, disclose or convey such information, report or results to a third party," and MCL 338.1729 provides that "a person violating this act . . . is guilty of a misdemeanor." Those statutory provisions expose an officer who conveys confidential information gained from a polygrapher to criminal liability, which is certainly a strong deterrent and reduces the incremental deterrence that the exclusionary rule would provide. Also, if an officer's conveyance of such information amounts to a due process violation, as the Court of Appeals panel held here, then the officer may be subject to § 1983 claim. See Mettler Walloon, LLC v Melrose Twp, 281 Mich.App. 184, 195 (2008) ("42 USC 1983 is the all-purpose federal civil rights statute, providing a remedy for violations of the federal constitution and other federal law."). The Supreme Court has considered exposure to civil liability from a § 1983 claim in holding that the incremental deterrent effect of suppressing evidence that is discovered following knock-and-announce violations did not warrant suppression. Hudson v Michigan, 547 U.S. 586, 598 (2006) ("As far as we know, civil liability is an effective deterrent here, as we have assumed it is in other contexts."); see generally id. at 595-599. An officer's exposure to civil and criminal liability for engaging in the type of conduct at issue here would appear to significantly diminish the incremental deterrence benefit of suppression in this case.
I also note that the polygraph profession is heavily regulated by a statute that proscribes the very conduct at issue in this case and contains several of its own enforcement mechanisms. MCL 338.1728(2) provides in part:
Any principal, manager or employee of a licensed examiner who . . . divulges or otherwise discloses to other than clients . . . any information acquired by him or them during employment by the client is guilty of a misdemeanor, and shall be subjected to immediate suspension of license by the [State Board of Forensic Polygraph Examiners] and revocation of license upon satisfactory proof of the offense. [Emphasis added.]This provides for criminal sanctions against a polygraph examiner, and immediate suspension and subsequent revocation of his or her license, when the statute is violated. MCL 338.1720 provides the board investigatory authority and, upon revocation, MCL 338.1721 even authorizes the board to seize an examiner's license if the examiner refuses to surrender it. (The board was abolished in 2007, but its functions were transferred to what was then the Department of Labor and Economic Growth and is now the Department of Licensing and Regulatory Affairs. See Executive Order No. 2007-24 and Executive Reorganization Order No. 2011-4.) These provisions are designed to deter polygraph examiners from disclosing and police officers from receiving privileged information, as occurred in this case, which significantly reduces the likelihood that a police officer would even be put in the situation of having to decide between conveying probative, yet confidential information and respecting that privilege by not conveying the information.
Against that marginal benefit, suppression carries substantial societal costs. The Court of Appeals affirmed the trial court's suppression of video footage that showed defendant near the victim's house on the night that she disappeared. This evidence is both reliable and probative, and its suppression will certainly impair the jury's truth-finding ability. Thus, I conclude the Court should grant leave to weigh the incremental benefit of suppression against the substantial societal costs in order to determine whether the exclusionary rule should apply in this case.
Second, this Court should consider whether there is a conflict between Brady v Maryland, 373 U.S. 83 (1963), and Joly, 336 Mich.App. 388, lv den 508 Mich. 971 (2021). Under Brady, if a government actor outside the investigative team for a particular case possesses material exculpatory information and fails to disclose it, there is no constitutional violation. By contrast, under the current Michigan regime created by Joly, a relatively recent Court of Appeals opinion, if a government actor outside the investigative team possesses inculpatory information but obtained it from a privileged source from which prejudicial evidence is collected, there is a constitutional violation and suppression ensues. The instant case involves a high-profile murder investigation. To the extent Joly is to be embraced under the facts of the instant case, such a determination should come from this Court. Likewise, only this Court can distinguish or limit Joly, or otherwise harmonize it with Brady.
For those reasons, I respectfully dissent from the Court's decision to deny leave.
Zahra, J., joins the statement of Viviano, J.