People of Michigan v. Anthony Lemar Newman ( 2020 )

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PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED
July 2, 2020
Plaintiff-Appellant,
v No. 348846
Wayne Circuit Court
ANTHONY LEMAR NEWMAN, LC No. 19-000526-01-FH
Defendant-Appellee.
Before: MURRAY, C.J., and JANSEN and MARKEY, JJ.
PER CURIAM.
Defendant was charged with possession with intent to deliver 50 grams or more but less
than 450 grams of cocaine, MCL 333.7401(2)(a)(iii), possession with intent to deliver less than 50
grams of heroin, MCL 333.7401(2)(a)(iv), two counts of felon in possession of a firearm, MCL
750.224f, and two counts of possession of a firearm during the commission of a felony (felony-
firearm), MCL 750.227b. Defendant moved to quash the information, arguing that the district
court erred in binding him over because probable cause was not established that defendant
possessed the cocaine, heroin, and firearms that were found at a residence in Inkster. Defendant
also argued that police officers employed by the city of Detroit were acting outside of their
jurisdiction when they conducted surveillance on him and the home where the drugs were found
and then executed a search warrant on the Inkster residence. The circuit court granted defendant’s
motion to quash, agreeing with both of his arguments. The prosecution appeals by right, and we
reverse and remand for reinstatement of the charges.
I. FACTUAL BACKGROUND
Detroit Police Officer William Morrison received a tip from a confidential informant that
defendant was selling drugs out of a single-family home located in Inkster. On July 25, 2018,
Officer Morrison and a team of Detroit police officers conducted surveillance on the home for
approximately two hours. The officers saw numerous individuals enter the house for a short period
of time and then leave. The police officers also observed defendant entering and exiting the home,
walking around the property, and engaging in a hand to hand transaction with the driver of a car
that stopped at the house.
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On the basis of this surveillance, the informant’s tip, and defendant’s prior narcotics arrests,
Officer Morrison obtained a search warrant for the residence. On July 26, 2018, Officer Morrison
and other officers from the Detroit Police Department executed the search warrant. Defendant was
alone in the home and was arrested. Within the residence, the officers found a knotted bag
containing 42.3 grams of heroin, a knotted bag containing 11 grams of cocaine, a container holding
a white powder that the officers believed to be “cut” drugs, pneumatic presses, and two pistols.
Another individual was detained in the garage. And the officers discovered a knotted bag that
contained 63.4 grams of cocaine on a work bench in the garage.
On January 11, 2019, defendant was bound over to the circuit court on all charges. On
March 18, 2019, defendant moved to quash the information, raising the arguments set forth above;
a hearing was held March 27, 2019, after which the circuit court granted defendant’s motion. The
circuit court concluded that there was insufficient evidence to establish probable cause that
defendant possessed the cocaine, heroin, and firearms and that the Detroit police officers did not
have jurisdictional authority to act in Inkster.
II. JURISDICTION AND MCL 764.2A
MCL 764.2a concerns the jurisdictional authority of law enforcement officers when outside
of their geographical boundaries, providing, in part, as follows:
(1) A peace officer of a county, city, village, township, public airport
authority, or university of this state may exercise the authority and powers of a
peace officer outside the geographical boundaries of the officer’s county, city,
village, township, public airport authority, or university under any of the following
circumstances:
(a) If the officer is enforcing the laws of this state in conjunction with the
Michigan state police.
(b) If the officer is enforcing the laws of this state in conjunction with a
peace officer of any other county, city, village, township, public airport authority,
or university in which the officer may be.
(c) If the officer has witnessed an individual violate any of the following
within the geographical boundaries of the officer’s county, city, village, township,
public airport authority, or university and immediately pursues the individual
outside of the geographical boundaries of the officer’s county, city, village,
township, public airport authority, or university . . . .
We review de novo the interpretation and application of MCL 764.2a. People v Hamilton, 465
Mich. 526, 531-532; 638 NW2d 92 (2002), abrogated in part on other grounds by Bright v Ailshie,
465 Mich. 770 (2002).
Here, it is undisputed that the Detroit police officers were acting outside of their jurisdiction
when they surveilled and executed a search warrant at the home in Inkster. It is also undisputed
that the officers were not acting in hot pursuit or in conjunction with the Michigan State Police or
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the Inkster Police Department on July 25 and 26, 2018. Therefore, there was a violation of MCL
764.2a.
In Hamilton, 465 Mich. at 530-533, our Supreme Court, addressing a violation of MCL
764.2a, observed:
It is undisputed that, at the time of the stop and arrest, Officer Lockhart was
acting outside his jurisdiction. MCL 764.2a, captioned authority of peace officers
outside their own bailiwicks, provides that police officers may exercise their
authority in jurisdictions other than their own if they are working in conjunction
with authorities of that other jurisdiction. In this case, the officer was not acting in
conjunction with law enforcement officers having jurisdiction in Howell Township,
and thus his actions were not within MCL § 764.2a. It is also undisputed that the
officer . . . was not in “hot pursuit” of the defendant . . . .
***
The Court of Appeals concluded that because the arrest was illegal, it
warranted exclusion of evidence as the remedy. We disagree. That the officer acted
without statutory authority does not necessarily render the arrest unconstitutional.
The Fourth Amendment exclusionary rule only applies to constitutionally invalid
arrests, not merely statutorily illegal arrests.
In People v Collins, 298 Mich. App. 458, 466-467; 828 NW2d 392 (2012), this Court
similarly held:
Defendant initially argues that the evidence recovered should be suppressed
because the officers were acting outside their jurisdiction, in violation of MCL
764.2a(1). However, assuming this to be the case, it does not provide a basis for
suppression. An arrest that is statutorily invalid under MCL 764.2a(1), which limits
the authority a peace officer may exercise outside his jurisdiction, is not necessarily
unconstitutional. A statutorily invalid arrest therefore does not automatically trigger
the exclusionary rule. Our Supreme Court has determined that the Legislature did
not intend for the exclusionary rule to apply to an arrest that is invalid under MCL
764.2a(1) because the statute was intended to protect the rights and autonomy of
local governments, not to protect criminal defendants. [Quotation marks and
citations omitted.]
Accordingly, in the instant case, the fact that the Detroit police officers acted outside of
their jurisdiction in violation of MCL 764.2a did not render the arrest unconstitutional, did not
warrant application of the exclusionary rule under the Fourth Amendment relative to the seized
evidence, and did not support quashing the information.
Defendant argues, however, that police officers acting outside of their jurisdiction may not
utilize the power of their office to gather evidence, investigate, or ferret out criminal activity not
otherwise observable and then use the information to obtain a search warrant, all of which occurred
here, thereby invalidating the warrant on constitutional grounds. In support of this proposition,
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defendant cites People v Meyer, 424 Mich. 143; 379 NW2d 59 (1985), in which “the trial judge,
sua sponte, found that the undercover officer had purchased cocaine from the defendant outside
the officer’s bailiwick, and that the officer’s action was without any legal authority or power as a
law enforcement agent.” Id. at 146. The trial court concluded “that the officer’s actions were
‘tainted with illegality,’ [and it] . . . dismissed the case against the defendant.” Id.
The Supreme Court indeed indicated that police “officers acting outside their jurisdiction
but not in fresh pursuit may not utilize the power of their office to gather evidence or ferret out
criminal activity not otherwise observable” so as “to prevent officers from improperly asserting
official authority to gather evidence not otherwise obtainable.” Id. at 159 (quotation marks and
citation omitted). Our defendant, however, ignores the remainder of the Meyer Court’s opinion,
wherein it held:
Furthermore, despite the fact that Officer Carpenter was acting outside his
jurisdiction without authority and not in conjunction with a peace officer having
jurisdiction over the City of Parchment, the defendant is not entitled to relief in the
form of dismissal of the criminal felony information.
***
By no means should it be understood that we condone Officer Carpenter’s
activities in this case. What he did was plainly contrary to the statute and, as such,
may properly warrant official sanction. . . . .
In addition, an officer acting outside his bailiwick without authority may
subject himself to civil liability. . . . .
***
It is clear, however, that under the facts of this case, the remedy, if any, to
which defendant may be entitled does not include dismissal of the criminal charges
against him. The fact that Officer Carpenter was acting outside his bailiwick does
not preclude his swearing to the felony complaint or his acting as a complaining
witness; nor does it preclude his giving testimony at the preliminary exam. The
courts below erred in dismissing the charge and in upholding that dismissal. [Id. at
160-162.]
Accordingly, defendant’s argument under Meyer is entirely unavailing and in fact supports
reversal of the circuit court’s ruling.1
1
We also note that Collins involved the search of a car purportedly outside of the police officers’
jurisdiction, yet reversal of the defendant’s convictions was unwarranted. Collins, 298 Mich. App.
at 466.
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III. PROBABLE CAUSE AND POSSESSION OF THE DRUGS AND FIREARMS
In People v Waterstone, 296 Mich. App. 121, 131-132; 818 NW2d 432 (2012), this Court
discussed the applicable standard of review with respect to bindovers and motions to quash:
This Court reviews for an abuse of discretion both a district court’s decision
to bind a defendant over for trial and a trial court’s decision on a motion to quash
an information. A trial court abuses its discretion when its decision falls outside the
range of reasonable and principled outcomes. A trial court necessarily abuses its
discretion when it makes an error of law. This Court reviews de novo questions of
statutory construction. [Quotation marks and citations omitted.]
“Where a preliminary examination is permitted by law, the people and the defendant are
entitled to a prompt preliminary examination.” MCR 6.110(A). “If, after considering the
evidence, the court determines that probable cause exists to believe both that an offense not
cognizable by the district court has been committed and that the defendant committed it, the court
must bind the defendant over for trial.” MCR 6.110(E). MCL 766.13 provides:
If the magistrate determines at the conclusion of the preliminary
examination that a felony has not been committed or that there is not probable cause
for charging the defendant with committing a felony, the magistrate shall either
discharge the defendant or reduce the charge to an offense that is not a felony. If
the magistrate determines at the conclusion of the preliminary examination that a
felony has been committed and that there is probable cause for charging the
defendant with committing a felony, the magistrate shall forthwith bind the
defendant to appear within 14 days for arraignment before the circuit court of that
county, or the magistrate may conduct the circuit court arraignment as provided by
court rule.
In People v Yost, 468 Mich. 122, 125-126; 659 NW2d 604 (2003), our Supreme Court
discussed MCL 766.13 and the guiding principles in assessing probable cause:
As the statute indicates, the preliminary examination has a dual function,
i.e., to determine whether a felony was committed and whether there is probable
cause to believe the defendant committed it. At the examination, evidence from
which at least an inference may be drawn establishing the elements of the crime
charged must be presented. The probable-cause standard of proof is, of course, less
rigorous than the guilt-beyond-a-reasonable-doubt standard of proof. Probable
cause requires a quantum of evidence sufficient to cause a person of ordinary
prudence and caution to conscientiously entertain a reasonable belief of the
accused’s guilt. Yet, to find probable cause, a magistrate need not be without doubts
regarding guilt. The reason is that the gap between probable cause and guilt beyond
a reasonable doubt is broad, and finding guilt beyond a reasonable doubt is the
province of the jury. [Quotation marks and citations omitted.]
Defendant is charged with possessing cocaine, heroin, and firearms. The circuit court
granted defendant’s motion to quash the information after concluding that there was a failure to
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show probable cause that defendant had possession of the drugs and guns. “Possession” of a gun
is an element of felon-in-possession, MCL 750.224f; People v Bass, 317 Mich. App. 241, 268; 893
NW2d 140 (2016), and of felony-firearm, MCL 750.227b; People v Peals, 476 Mich. 636, 640;
720 NW2d 196 (2006). Possession of a firearm can be actual or constructive, joint or exclusive,
and proven with direct or circumstantial evidence. People v Minch, 493 Mich. 87, 91-92; 825
NW2d 560 (2012); People v. Hill, 433 Mich. 464, 469-470; 446 NW2d 140 (1989). With respect
to possession of illegal drugs, the Michigan Supreme Court in People v Wolfe, 440 Mich. 508, 519-
520; 489 NW2d 748 (1992), held:
A person need not have actual physical possession of a controlled substance
to be guilty of possessing it. Possession may be either actual or constructive.
Likewise, possession may be found even when the defendant is not the owner of
recovered narcotics. Moreover, possession may be joint, with more than one person
actually or constructively possessing a controlled substance.
[T]he courts have frequently addressed the concept of constructive
possession and the link between a defendant and narcotics that must be shown to
establish constructive possession. It is well established that a person’s presence, by
itself, at a location where drugs are found is insufficient to prove constructive
possession. Instead, some additional connection between the defendant and the
contraband must be shown. [Citations omitted.]
In regard to possessory crimes in Michigan, the test for constructive possession is whether
the totality of the circumstances revealed a sufficient nexus between the defendant and the
contraband. Minch, 493 Mich. at 91-92. A person has constructive possession if he or she
knowingly has the power and the intention at a given time to exercise dominion or control over a
thing, either directly or through another person. Id. at 92. Possession may be established through
circumstantial evidence and the reasonable inferences arising therefrom. People v Barbee, 325
Mich. App. 1, 12; 923 NW2d 601 (2018). “The question of possession is factual and is to be
answered by the jury.” Hill, 433 Mich. at 469.
We hold that the circuit court abused its discretion by concluding that the district court
lacked probable cause to bind defendant over on the offenses involving possession of cocaine,
heroin, and firearms. Again, Officer Morrison received information from a confidential informant
that defendant was selling narcotics at a specific address in Inkster. According to the Wayne
County Property Tax Records, the residence was owned by Newman Enterprises. Defendant was
observed at the residence on July 25 and 26, 2018, and a car registered to defendant was parked in
the driveway. Defendant was seen entering and exiting the home, walking around the property,
and engaging in hand to hand transactions of some sort. The police witnessed numerous
individuals who went to the home for very brief periods of time, which was indicative of drug
trafficking. Defendant alone was inside the house when the search warrant was executed.
Pneumatic presses, 42.3 grams of heroin, 11 grams of cocaine, and two guns were located inside
of the residence. The combination of a reliable tip, the observations of defendant the day before
the search warrant was executed, and defendant’s sole presence inside the home where the
contraband was located established probable cause for the district court to conclude that defendant
had possession of the cocaine, heroin, and firearms. Stated otherwise, the prosecution presented a
quantum of evidence sufficient to cause a person of ordinary prudence and caution to
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conscientiously entertain a reasonable belief of defendant’s guilt. One could reasonably infer from
the evidence that there was a sufficient nexus between defendant and the drugs and the guns and
that defendant knowingly had the power and intention to exercise dominion and control over the
contraband at any given time.
The fact that another individual was in the garage where 63.4 grams of cocaine were found
next to a digital scale when the search warrant was executed raises a question of fact for a jury to
entertain regarding possession, but does not undermine the district court’s determination that
probable cause existed that defendant possessed the cocaine. Again, two or more individuals can
jointly possess contraband, and defendant’s activities at the house were adequate to establish
probable cause with respect to possession of the cocaine found in the garage.2 In sum, the circuit
court abused its discretion by granting defendant’s motion to quash the information, where it
effectively substituted its own judgment for that of the district court. The district court did not
abuse its discretion by binding defendant over for trial.
We reverse and remand for reinstatement of the charges against defendant. We do not
retain jurisdiction.
/s/ Christopher M. Murray
/s/ Jane E. Markey
2
We note that Officer Morrison testified that the confidential informant told him that defendant
was selling drugs from the home and the garage.
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