Opinion
SC 166671 COA: 364510
06-07-2024
PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v. ROBERT LEVON TAYLOR, Defendant-Appellant.
CC: 22-002739-FH
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
Elizabeth T. Clement, Chief Justice
On order of the Court, the application for leave to appeal the December 14, 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.
CAVANAGH, J. (dissenting).
I dissent from this Court's order denying leave in this Fourth Amendment search-and-seizure case. Because I believe that defendant has potentially meritorious arguments that (1) under People v Hyde, 285 Mich.App. 428 (2009), the inevitable-discovery exception to the exclusionary rule does not apply because the police were not in the process of obtaining a warrant at the time of the search and (2) another exception to the exclusionary rule-the attenuation doctrine-does not apply, I would have ordered oral argument on the application.
Defendant is charged with possession with intent to deliver 50 grams or more, but less than 450 grams, of cocaine, MCL 333.7401(2)(a)(iii). Defendant came to the attention of the Michigan State Police when they ran the plates of his out-of-state vehicle at a Greyhound bus station and discovered numerous outstanding arrest warrants in his name. The trooper who approached defendant later testified that he had reasonable suspicion to arrest due to the outstanding warrants and other circumstances including defendant's demeanor. But instead of legally arresting defendant, the trooper merely detained him. The trooper then removed a bag from defendant's shoulder, and a police dog performed a drug sniff on the bag that indicated narcotics. Without obtaining a warrant, the trooper then searched the shoulder bag and discovered crack cocaine hidden in Vaseline containers. Defendant was then arrested and ultimately charged as indicated earlier.
Defendant moved to suppress the evidence after being bound over for trial, arguing that the police violated his Fourth Amendment rights, U.S. Const, Am IV, when they searched his bag without a warrant. The trial court agreed that suppression was appropriate, granting the motion and dismissing the case. The prosecutor appealed as of right, and the Court of Appeals reversed. People v Taylor, unpublished per curiam opinion of the Court of Appeals, issued December 14, 2023 (Docket No. 364510). Defendant then applied for leave to appeal in this Court. Defendant argues in his application that the trial court correctly determined that the inevitable-discovery doctrine did not apply and that the Court of Appeals wrongly applied the attenuation doctrine. I believe that both issues are worthy of further review.
Defendant also argues that the prosecution waived the inevitable-discovery-doctrine argument. I agree with the Court of Appeals that the argument is sufficiently preserved for appellate review. Taylor, unpub op at 4 n 7.
The exclusionary rule generally provides for the suppression of evidence obtained during an unconstitutional search. People v Stevens, 460 Mich. 626, 634-635 (1999). It is subject to several exceptions, such as the inevitable-discovery and attenuation exceptions at issue here. Id. at 636. The inevitable-discovery rule allows evidence that would otherwise be suppressed to be admitted if the evidence would have inevitably been discovered absent the violation of the defendant's constitutional rights. Nix v Williams, 467 U.S. 431 (1984). In adopting this exception, the United States Supreme Court recognized that the deterrence rationale underlying the exclusionary rule is not served "if the prosecution can establish by a preponderance of the evidence that the information ultimately or inevitably would have been discovered by lawful means ...." Id. at 444.
Defendant's argument that this case is indistinguishable from two cases where the inevitable-discovery exception was held not to apply-Hyde and People v Mahdi, 317 Mich.App. 446 (2016)-is persuasive. As defendant explains, Hyde involved a traffic stop based on suspected driving under the influence. Hyde, 285 Mich.App. at 430-432. The officer improperly told the driver that the implied-consent statute applied to him and induced his consent for a blood alcohol test-even though the statute did not apply because he had diabetes, see MCL 257.625c(2). Id. at 435. The driver moved to suppress the blood sample and results because he had been coerced into consenting to the blood draw, and the trial court denied the motion on the basis that the evidence would have been inevitably discovered had the police followed proper procedure. Id.
The Court of Appeals reasoned in reversing that "[a]lthough there was a high level of probable cause to obtain a warrant and the same evidence-Hyde's blood-would have been obtained pursuant to the eventual warrant, it is obvious that the police were not in the process of obtaining a warrant when they secured Hyde's invalid consent." Hyde, 285 Mich.App. at 445. The Hyde panel further explained that, when weighing whether to apply the inevitable-discovery doctrine, "the damage that would be done to the Fourth Amendment and the incentive for police misconduct by adopting the inevitable discovery doctrine under these circumstances" outweighed the two other concerns: the existence of independent legal means (by securing a search warrant) and the inevitability of the use of legal means and discovery of the evidence. Id. The Court of Appeals reasoned that "[t]o allow a warrantless search merely because probable cause exists would allow the inevitable discovery doctrine to act as a warrant exception that engulfs the warrant requirement." Id. This rationale appears to apply equally to these facts, given that the police here could have gotten a search warrant, but simply chose not to obtain one. Instead, the police illegally searched defendant's bag without obtaining a warrant or attempting to obtain a warrant.
Relying on Hyde, 285 Mich.App. at 445, the Court of Appeals similarly held in Mahdi that the inevitable-discovery doctrine did not apply because "[e]ven assuming that the officers had probable cause to obtain a warrant for the keys, wallet, and cell phone, the officers were not in the process of obtaining a warrant when they seized the items." Mahdi, 317 Mich.App. at 470.
Even if the evidence does not come in under the inevitable-discovery doctrine, the Court of Appeals sua sponte raised and applied the attenuation doctrine as an alternative exception to the exclusionary rule. Taylor, unpub op at 9. However, like defendant, I question whether the attenuation doctrine is applicable here. The premise of the doctrine is that "[i]n some cases, . . . the link between the unconstitutional conduct and the discovery of the evidence is too attenuated to justify suppression." Utah v Strieff, 579 U.S. 232, 235 (2016). In evaluating whether the attenuation doctrine applies, courts consider three factors:
I question whether this was appropriate given that the prosecutor did not raise the argument.
"First, we look to the 'temporal proximity' between the unconstitutional conduct and the discovery of evidence to determine how closely the discovery of evidence followed the unconstitutional search. Second, we consider 'the presence of intervening circumstances.' Third, and 'particularly' significant, we examine 'the purpose and flagrancy of the official misconduct.'" [People v Maggit, 319 Mich.App. 675, 695 (2017), quoting Strieff, 579 U.S. at 239.]
So, this doctrine is applied when there is unlawful conduct before the discovery of evidence, but intervening circumstances between the two negate the justification for suppression. See id. Strieff involved an unlawful detention of a visitor who was observed leaving a suspected drug house. Strieff, 579 U.S. at 235. During the unlawful investigatory stop, the officer obtained the defendant's identification and relayed it to the dispatcher, who advised of an outstanding warrant for a traffic violation. Id. at 235-236. The officer then arrested the defendant and searched him incident to the arrest, discovering drugs and drug paraphernalia. Id.
In this case, as in Strieff, the proposed "intervening event" is the discovery of valid outstanding warrants. In cases applying the attenuation doctrine, the order of operations appears to be (1) unlawful conduct, (2) intervening event (discovery of outstanding warrant(s)), (3) lawful arrest, and finally (4) search and discovery of contraband incident to arrest. See id.; People v Reese, 281 Mich.App. 290 (2008). But inMaggit, the Court of Appeals held that the attenuation doctrine did not apply where an invalid seizure was followed by the search and discovery of contraband, after which a valid warrant was discovered. Maggit, 319 Mich.App. at 702. The panel observed:
In short, the instant case does not involve the discovery of a warrant as an intervening act that "purged" the taint from the illegal seizure; rather, it involves an after-the-fact discovery of a valid warrant and an attempt to apply that warrant as a post-hoc panacea for unlawful actions that were wholly unrelated to that warrant. [Id. at 700-701.]
In other words, the doctrine is inapplicable if the illegal activity and search occur before the warrant is discovered.
This case falls in between the two categories of cases, because the supposed "intervening" event-the discovery of the warrants-occurred . first. The facts are distinct from Strieff and Reese, which began with unconstitutional conduct that was cleansed by the discovery of outstanding warrants as well as searches that occurred incident to arrest. But unlike in Maggit, the warrants were discovered at the very beginning of the interaction with the police, rather than at the end. Our time line begins with the police discovering the outstanding warrants, legally detaining defendant and conducting a sniff search, then engaging in an unlawful search of the backpack, and finally arresting defendant.
The Court of Appeals has framed the application of the doctrine as "whether the discovery of a preexisting warrant dissipates or attenuates the illegality of the initial stop or arrest." Reese, 281 Mich.App. at 303-304. I question whether this doctrine should be applied where the stop begins legally, illegal conduct then occurs, and there is no "intervening event" because the police were aware of the outstanding warrants from the outset. Another difference from Strieff and Reese is that the search did not occur incident to a lawful arrest. Instead, the police did not arrest defendant until after the search. I believe that the resolution of whether the attenuation doctrine applies here is nuanced, and thus worthy of further review.
Note that in Reese, the police initially unlawfully arrested the defendant for loitering but then lawfully arrested him on an outstanding warrant before performing an inventory search. Reese, 281 Mich.App. at 292-293.
Because I believe that defendant's argument regarding the inevitable-discovery doctrine is potentially meritorious under Hyde, and because I question whether the attenuation doctrine should nonetheless be applied to prevent suppression, I would have ordered oral argument on the application to review defendant's arguments that suppression is appropriate. Instead, the Court denies leave to appeal and, therefore, I respectfully dissent.
WELCH, J., JOINS THE STATEMENT OF CAVANAGH, J.