People of Michigan v. Anthony Maye ( 2022 )

If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN, FOR PUBLICATION
August 25, 2022
Plaintiff-Appellant, 9:10 a.m.
v No. 357233
Macomb Circuit Court
ANTHONY MAYE, LC No. 2020-000160-AR
Defendant-Appellee.
Before: BOONSTRA, P.J., and GADOLA and HOOD, JJ.
GADOLA, J.
Plaintiff appeals on leave granted the order of the circuit court reversing the order of the
district court that denied defendant’s motion to quash the warrant and complaint. We reverse and
remand.
I. FACTS
On August 26, 2019, police officers were surveilling the home of defendant, Anthony
Maye, for suspected drug trafficking. When defendant left his home in his vehicle, the surveilling
officers alerted a canine unit officer with the Michigan State Police, who thereafter stopped
defendant’s vehicle for a traffic infraction. The canine unit police dog circled the vehicle, then
jumped into the vehicle. The canine unit officer related this information to the other officers, who
then searched defendant’s vehicle and discovered 125 grams of cocaine under the driver’s seat and
cash in the center console. The officers thereafter searched defendant’s home with a warrant
obtained based upon the evidence found during the search of defendant’s vehicle. At defendant’s
home, the officers found 387 grams of cocaine in plastic bags, two digital scales with cocaine
residue, and four guns, one of which had been reported stolen. Defendant was charged with
possession with intent to deliver 450 or more grams but less than 1,000 grams of cocaine, MCL
333.7401(2)(a)(ii); possession of a firearm during the commission of a felony (felony-firearm),
MCL 750.227b; receiving and concealing stolen property, MCL 750.535; felon in possession of a
firearm, MCL 750.224f; and maintaining a drug house, MCL 333.7405(1)(d).
At the preliminary examination before the district court, Sergeant Travis Crooks with the
St. Clair Shores Police Department testified that he was involved in the surveillance of defendant’s
-1-
home and that he was present during the traffic stop of defendant’s vehicle by the canine unit
trooper. Sergeant Crooks testified that he watched as the police dog circled the vehicle, and that
the dog made “an indication” to the canine unit trooper that drugs were in the vehicle before
jumping in the vehicle. The district court sustained the defense objection that Sergeant Crooks
was not an expert in canine training and identification and precluded Sergeant Crooks from
testifying regarding what the dog indicated. Sergeant Crooks then testified that after the canine
unit trooper removed the dog from the vehicle, the trooper made a statement to Crooks, and Crooks
then searched the vehicle, discovering the drugs and the cash in the vehicle. Sergeant Crooks
testified that the police subsequently executed a search of defendant’s home, finding additional
cocaine, drug paraphernalia, and guns.
The prosecutor requested to continue the preliminary examination to enable her to call the
canine unit trooper to explain that the police dog indicated to the officers that drugs were located
in defendant’s vehicle before the officers searched the vehicle. After the prosecution explained
what she anticipated the canine unit trooper would say if called to testify, defense counsel
stipulated to certain proposed testimony for purposes of expediency. In light of the stipulation,
the prosecutor rested her case and requested that the trial court bind over defendant as charged, or
permit her to call the canine unit officer as a witness.
The district court then ruled on the bindover request. The district court held that the traffic
stop was constitutional because the officers had a valid basis to stop defendant, but that the search
of the vehicle was not supported by probable cause because there was “no testimony here as to
what the dog alerted to . . . outside of the vehicle. We did not have M.S.P. [the canine unit officer]
here today. We had an officer, who is not a trained canine officer; who cannot testify as to what a
canine’s alerts indicate or don’t indicate.” The prosecutor requested to continue the preliminary
examination at a future date to enable her to call the canine unit trooper as a witness, or a stay of
proceedings to enable an appeal to the circuit court. The district court denied the stay, amended
Count I to specify delivery of 50 to 450 grams, MCL 333.7401(2)(a)(iii), and bound defendant
over on Counts II, III, and V. The district court did not find probable cause to bind defendant over
on Count IV, felon in possession of a firearm, because there was no certified copy of conviction
offered into evidence.
Before the circuit court, defendant moved to quash the search warrant and complaint,
arguing that the search of the home was unconstitutional because it was based on the illegal search
of the car. The prosecution requested that the charges be dismissed, and the circuit court dismissed
the charges. The prosecution then refiled the same charges initially filed against defendant.
Once again in the district court, defendant moved to quash the warrant and complaint,
arguing that the prosecution was collaterally estopped from again charging him with possession of
the cocaine because the district court had previously ruled that the search of the vehicle was
unlawful. The district court denied defendant’s motion, explaining that its earlier dismissal of
Count I of the complaint was without prejudice to the refiling of the charge and rejecting
defendant’s assertions that he was prejudiced by the refiling of the charge.
The circuit court granted defendant leave to appeal the order of the district court. Before
the circuit court, defendant contended that the prosecution was collaterally estopped from refiling
the same charges because the district court’s order was final. The prosecutor contended that the
-2-
district court had determined only that there was insufficient evidence to support binding defendant
over to the circuit court on the possession count and felon in possession of a firearm count, and
that the prosecutor was therefore free to refile the charges and offer additional evidence to support
the charges.
The circuit court held that collateral estoppel barred reauthorization of Count I of the
complaint that charged defendant with possession of the cocaine. The circuit court explained:
Here, the refusal to bind Appellant over after the preliminary examination was not
based on a failure to present certain evidence, but the district court’s determination
that the evidence submitted was the result of an illegal search which would preclude
its consideration. Therefore, the Court does not find that prior caselaw or the
Michigan Court Rules preclude this Court from applying collateral estoppel in this
case, because the district court made a determination on a factual issue. The proper
procedure for Appellee thereafter was to file a motion for reconsideration or an
appeal of the decision, rather than attempting a second bite at the apple by
dismissing and refiling the charges.
This Court granted the prosecutor’s application for leave to appeal from the order of the
circuit court, limited to the issues raised in the application for leave to appeal and the supporting
brief. People v Maye, unpublished order of the Court of Appeals, entered September 13, 2021
(Docket No. 357233).
II. DISCUSSION
The prosecution contends that the circuit court erred by reversing the decision of the district
court, which denied defendant’s motion to quash the charges against him, rejecting defendant’s
contention that collateral estopped barred the refiling of the complaint. We agree.
The district court’s decision to grant or deny a motion to quash an information is reviewed
for an abuse of discretion. People v Simon, ___ Mich App ___, ___; ___ NW2d ___ (2021)
(Docket No. 354013); slip op at 5. An abuse of discretion occurs when the court does not select a
reasonable and principled outcome. People v Anderson, 501 Mich 175, 189; 912 NW2d 503
(2018). To the extent that a lower court’s decision on a motion to quash an information is based
upon interpretation of the law, we review the decision de novo. Simon, ___ Mich App at ___; slip
op at 5.
Preliminary examinations are governed by MCR 6.110. People v Dunbar, 463 Mich 606,
612; 625 NW2d 1 (2001). Under MCR 6.110(E), if the district court determines that probable
cause exists to believe the defendant committed an offense not cognizable by the district court, the
district court must bind the defendant over to the circuit court for trial. Under MCR 6.110(F),
[i]f, after considering the evidence, the court determines that probable cause does
not exist to believe either that an offense has been committed or that the defendant
committed it, the court must discharge the defendant without prejudice to the
prosecutor initiating a subsequent prosecution for the same offense or reduce the
charge to an offense that is not a felony. Except as provided in MCR 8.111(C), the
-3-
subsequent preliminary examination must be held before the same judicial officer
and the prosecutor must present additional evidence to support the charge.
In accordance with this court rule, “the prosecution may reinstate the charges against a defendant
where it seeks to present ‘additional evidence’ at the second examination to the same magistrate
who presided over the defendant’s preliminary examination.” People v Robbins, 223 Mich App
355, 361; 566 NW2d 49 (1997). Under MCR 6.110(F), additional evidence is not limited to newly-
discovered evidence. Id.In this case, the district court found that probable cause did not exist to bind defendant over
on the charge of possession with intent to deliver 450 or more grams of cocaine but less than 1,000
grams of cocaine, MCL 333.7401(2)(a)(ii), because the prosecution failed to present evidence that
the officers had probable cause to search the vehicle. Because the district court did not bind
defendant over on the possession charge as charged in the complaint, the district court discharged
defendant as to that charge “without prejudice to the prosecutor initiating a subsequent prosecution
for the same offense.” MCR 6.110(F). The prosecution thus was entitled to reinstate that charge
against defendant to seek to present additional evidence at the second preliminary examination
before the magistrate who presided over the first preliminary examination. See Robbins, 223 Mich
App at 361.
Defendant argues that the prosecutor could not refile the charges against him in this case
because the district court’s ruling that the search of the car was unconstitutional bars relitigation
of that issue in the second prosecution under the doctrine of collateral estoppel. “Collateral
estoppel precludes relitigation of an issue in a subsequent, different cause of action between the
same parties where the prior proceeding culminated in a valid, final judgment and the issue was
(1) actually litigated, and (2) necessarily determined.” People v Gates, 434 Mich 146, 154; 452
NW2d 627 (1990). To satisfy the “actually litigated” requirement, the party against whom
collateral estoppel is asserted must have had a full and fair opportunity to litigate the issue. Gates,
434 Mich at 156-157. An issue is “necessarily determined” “only if it is ‘essential’ to the
judgment.” Id. at 158 (citation omitted).
However, “dismissal of a prosecution at preliminary examination raises no bar under res
judicata or collateral estoppel to a subsequent prosecution.” People v Hayden, 205 Mich App 412,
414; 522 NW2d 336 (1994). Rather, “[d]ismissal of a defendant at a preliminary examination is
without prejudice to renewal of the charges.” Id. In Hayden, this Court explained that under MCR
6.110(F), and consistent with common law principles, neither res judicata nor collateral estoppel
precluded the prosecutor from refiling charges where the same magistrate presided over both
examinations and the prosecutor presented additional evidence to support the charge. Id. at 414.
This Court further observed that for purposes of the prosecutor refiling the charges, it was
immaterial what issue the prosecution had failed to establish initially. Id. at 415.
Similarly, in People v Price, 69 Mich App 363, 364; 244 NW2d 363 (1976), the lower
court quashed the information on the ground that the arresting police officers lacked probable
cause to conduct a warrantless arrest and search of the defendant. The prosecution filed a second
complaint involving the same matter, and another preliminary examination was held. At the
second examination, additional evidence was presented, and the defendant was bound over and
later convicted. On appeal, the defendant argued that collateral estoppel precluded the reissuing
-4-
of a warrant and information on the same facts. Id. at 369. This Court rejected the defendant’s
argument:
[T]he collateral estoppel rule would not be applicable to the instant case since there
was no determination of an ‘ultimate fact,’ . . . at the initial preliminary
examination. The dismissal which occurred at the first proceeding was a reflection
of the examining magistrate’s judgment that the evidence was insufficient to justify
a warrantless arrest and search. This deficiency was properly cured to the
satisfaction of the trial judge in the subsequent preliminary examination. [Id. at
370-373.]
Similarly, the district court in this case ruled at the preliminary examination that the
prosecution failed to present evidence that the police dog had indicated that drugs were present in
defendant’s vehicle, and thus had failed to present evidence of probable cause for the police to
search the vehicle. This was not a determination of an ultimate issue of fact, but rather was a
determination that the evidence was insufficient to justify a warrantless search, which could be
cured at a subsequent preliminary examination. See id.
The circuit court in this case held that “the refusal to bind Appellant over after the
preliminary examination was not based on a failure to present certain evidence, but the district
court’s determination that the evidence submitted was the result of an illegal search which would
preclude its consideration.” This is a mischaracterization of what the district court ruled. Contrary
to the circuit court’s conclusion, the district court’s refusal to bind over defendant on the drug
possession count was based entirely on the prosecution’s failure to present certain evidence,
namely, evidence that the police dog had alerted the officer to the presence of drugs in defendant’s
vehicle; the district court concluded that the search was illegal only in the absence of evidence of
probable cause. The district court’s dismissal of the possession charge at the initial preliminary
examination for failure to present sufficient evidence did not collaterally estop subsequent
prosecution. See Hayden, 205 Mich App at 414. To the extent that the circuit court concluded
that collateral estoppel barred the refiling of the charges against defendant, the circuit court erred.
Reversed and remanded. We do not retain jurisdiction.
/s/ Michael F. Gadola
/s/ Mark T. Boonstra
-5-