People of Michigan v. Anthony Lemar Newman

Order Michigan Supreme Court
Lansing, Michigan
July 30, 2021 Bridget M. McCormack,
Chief Justice
161906 Brian K. Zahra
David F. Viviano
Richard H. Bernstein
Elizabeth T. Clement
Megan K. Cavanagh
PEOPLE OF THE STATE OF MICHIGAN, Elizabeth M. Welch,
Plaintiff-Appellee, Justices
v SC: 161906
COA: 348846
Wayne CC: 19-000526-FH
ANTHONY LEMAR NEWMAN,
Defendant-Appellant.
_________________________________________/
On order of the Court, the application for leave to appeal the July 2, 2020
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. (concurring).
This appeal arises from the Detroit Police Department’s surveillance and search of
a suspected drug house in Inkster. After receiving a tip from a confidential informant, a
team of Detroit officers surveilled defendant’s residence in Inkster for two hours,
observing activity believed to be consistent with drug trafficking. Based on their
observations, the confidential informant’s tip, and defendant’s prior narcotics arrest, a
Detroit police officer obtained a search warrant from a Wayne Circuit judge acting in
place of a magistrate. A team of officers from the Detroit Police Department then
returned to defendant’s residence in Inkster to execute the search warrant. Inside the
home, the officers recovered narcotics and firearms. Defendant was arrested and 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. After he was bound over to circuit court, defendant
filed a motion to quash the information, arguing that (1) there was a lack of probable
cause to support the search warrant; and (2) that the police officers employed by the city
of Detroit were acting outside of their jurisdiction when they conducted surveillance and
executed a search warrant on the Inkster residence. The circuit court agreed with
defendant and dismissed the charges.
2
The prosecutor appealed and the Court of Appeals reversed over a partial dissent.
People v Newman, unpublished per curiam opinion of the Court of Appeals, issued July
2, 2020 (Docket No. 348846). On the issue of jurisdiction,1 the majority held that the
violation of MCL 764.2a did not warrant application of the exclusionary rule, relying on
People v Hamilton, 465 Mich 526, 532-533 (2002) (“The Fourth Amendment
exclusionary rule only applies to constitutionally invalid arrests, not merely statutorily
illegal arrests”), abrogated in part on other grounds by Bright v Ailshie, 465 Mich 770(2002). Dissenting Judge JANSEN concluded that because the search warrant was
procured based on policing done in violation of MCL 764.2a, it was a warrantless arrest
executed without probable cause. This, she concluded, violated defendant’s right to be
free from unreasonable searches and seizures and warranted application of the
exclusionary rule.
As the circuit court and the Court of Appeals panel recognized and the prosecution
concedes, the Detroit police officers acted outside of their jurisdiction in violation of
MCL 764.2a. The officers in this case acknowledged that they were not acting in
conjunction with the Michigan State Police, MCL 764.2a(1)(a), were not acting in
conjunction with the Inkster Police Department, MCL 764.2a(1)(b), and did not witness
defendant commit any crime within the geographical boundaries of the city of Detroit,
MCL 764.2a(1)(c).2 Accordingly, they were acting without statutory authority. The
question is, therefore, what remedy, if any, is available in light of a violation of MCL
764.2a.
In Hamilton, 465 Mich at 535, this Court considered whether suppression of the
evidence and dismissal of a case was the appropriate remedy for a violation of MCL
764.2a and held that it was not. In that case, an officer patrolling outside of his
jurisdiction pulled over a defendant on the suspicion of driving under the influence after
observing that the vehicle did not have operating taillights and the vehicle briefly touched
the shoulder of the roadway. Id. at 528. After performing sobriety tests, the driver was
arrested. Id. After being bound over to circuit court, the defendant successfully moved
to dismiss the charges on the basis that the arrest by an officer outside of his jurisdiction
was illegal in violation of MCL 764.2a. Although this Court agreed with the lower courts
that the arrest was illegal because the officer was acting without statutory authority, it
concluded that a violation of the statute did not render the arrest unconstitutional because
the officer had probable cause to arrest defendant for operating while under the influence.
“The Fourth Amendment exclusionary rule only applies to constitutionally invalid
1
I agree with the panel’s conclusions 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.
2
As dissenting Judge JANSEN recognized, the prosecution failed to explain why the
Detroit Police Department was policing in Inkster.
3
arrests, not merely statutorily invalid arrests.” Id. at 532-533, citing People v Lyon, 227
Mich App 599, 611 (1998).3 The Court went on to observe that “[a] number of decisions
establish that statutory violations do not render police actions unconstitutional.” Id. at
534, citing People v Meyer, 424 Mich 143 (1985), and People v Burdo, 56 Mich App 48(1974).4 On the basis of these decisions, the Court concluded that a statutory violation
does not “necessarily require application of an exclusionary rule” and that the question
was “whether the Legislature intended to apply the drastic remedy of exclusion of
evidence.” Hamilton, 465 Mich at 534 (emphasis added). To answer that question, the
Court determined that there was nothing in the language of MCL 764.2a suggesting that
the Legislature intended that suppression of evidence was appropriate when an officer
violated the statute. Id. Moreover, the purpose of MCL 764.2a was to “ ‘protect the
rights and autonomy of local governments,’ ” and, therefore, it did not “create a new right
of criminal defendants to exclusion of evidence.” Id. at 535. In sum, the Hamilton
Court, like the Court of Appeals majority in the instant case, held that the violation of
MCL 764.2a did not require exclusion of evidence.
I question the Hamilton decision—a peremptory opinion decided without the
benefit of oral argument—and, therefore, its application to the instant case. It is unclear
to me that a violation of MCL 764.2a can never be the basis for the suppression of
evidence. Until 1999, this Court had a history of suppressing evidence as a remedy for
the violation of statute. In People v Dixon, 392 Mich 691, 705 (1974), for example, this
Court held that “[a]ny evidence gained in derogation of this statutory right is to be
suppressed; no other remedy is as likely to assure its full enforcement and the protection
of the citizenry at large . . . .” The statute violated in that case was a statutory right to
immediate bail. Id. at 700. Other cases similarly held that suppression was an
appropriate remedy for a statutory violation. See People v Sherbine, 421 Mich 502(1984) (violation of MCL 780.653); People v Sloan, 450 Mich 160 (1995) (same).
In People v Stevens (After Remand), 460 Mich 626 (1999), however, the Court
changed course. After concluding that the police conduct in question—violation of the
“knock and announce” statute, MCL 780.656—violated the Fourth Amendment, the
Court considered whether application of the exclusionary rule was an appropriate
remedy. Id. at 633-634. It framed the issue as one of statutory interpretation. Id. at 644,
3
But see Leitman, A Clarification of Michigan Law Concerning the Suppression of
Evidence Seized in Violation of A State Statute: Exposing the Court of Appeals’ Blatant
Disregard for Controlling Supreme Court Precedent, 1998 Det C L Mich St L Rev 225,
238 (stating that Lyon deserved “special criticism” for failing to follow precedent from
this Court as well as a controlling decision of the Court of Appeals).
4
See id. at 234-236 (identifying Burdo as a “seminal decision” in a line of Court of
Appeals cases that ignored precedent from this Court authorizing suppression of evidence
as an appropriate remedy for the violation of a statute).
4
quoting People v Wood, 450 Mich 399, 408 (1995) (BOYLE, J., concurring) (“Whether
suppression is appropriate is a question of statutory interpretation and thus one of
legislative intent.”).5 The Court noted that the statute at issue did not allude to the
exclusionary rule and that the Legislature enacted MCL 780.657 (making it a
misdemeanor to willfully exceed authority or exercise authority with unnecessary
severity when executing a search warrant), concluding that it was the Legislature’s intent
that MCL 780.657 be the sanction for improperly performing a “knock and announce,”
not exclusion of evidence. Stevens, 460 Mich at 644-645. Moreover, the officers had a
valid search warrant, and their entrance into the home was inevitable. Id. at 646. For all
these reasons, suppression of the evidence was not warranted. Id. at 647.
The next year, this Court again rejected suppression of evidence as an available
remedy when law enforcement failed to provide the defendant with a copy of the affidavit
in violation of MCL 780.654. People v Sobczak-Obetts, 463 Mich 687 (2001). First,
there was no apparent legislative intent that the remedy of exclusion be invoked in the
event of a violation of the statute. Id. at 710. Second, the exclusionary rule forbids the
use of evidence acquired from governmental misconduct, not ministerial errors that occur
after the evidence has already been seized. Id. Finally, the deterrent purpose of the
exclusionary rule would not be served by ordering suppression because there was no
misconduct. Id. at 711.
Then came People v Hawkins, 468 Mich 488 (2003), in which the Court overruled
Dixon, Sloan, and Sherbine. In that case, the Court held that a violation of the affidavit
requirements in MCL 780.653—the same statute at issue in Sloan and Sherbine—did not
warrant suppression of evidence. Id. at 502. Like in Stevens and Sobczak-Obetts, the
Court identified the issue as being one primarily of legislative intent. Id. at 500, 507.
The Court concluded that nothing in MCL 780.653 led it to conclude “that the
Legislature intended that noncompliance with its affidavit requirements, standing alone,
justifies application of the exclusionary rule to evidence obtained by police in reliance on
a search warrant.” Id. at 510. In addition, application of the exclusionary rule to a
technical violation would not deter police misconduct. Id. at 510-511. The Court did not
address Dixon at length, only mentioning that the Dixon Court did not look to legislative
intent.
5
This quotation from Justice BOYLE’s concurrence in Wood cited no authority. I am at
least skeptical that the Legislature’s silence as to the application of the exclusionary
rule—a judicially created remedy—is the appropriate focus of the inquiry. See People v
Sobczak-Obetts, 463 Mich 687, 715 (2001) (CAVANAGH, J., dissenting) (“I fear that the
majority’s search for legislative intent effectively upends the intent that is most clear. . . .
Rather than leave the Legislature’s policy . . . so doubtful, I would exclude the challenged
evidence to ensure that the [Legislature’s] policy is observed.”).
5
I think it worthy of our consideration in a future case whether Hamilton was
properly decided and whether the exclusion of evidence may be an appropriate remedy
for a violation of MCL 764.2a in some instances. Assuming that Hawkins was correct to
overrule Sloan and Sherbine on the basis that technical violations of MCL 780.653 do not
require suppression, it does not necessarily follow that a violation of a statute like MCL
764.2a could never justify suppression of evidence. The Hamilton Court made this leap
without, in my view, any meaningful analysis. Moreover, none of the cases cited above
stands for the proposition that suppression is never warranted. In each case where the
Court determined that exclusion was an inappropriate remedy for the violation of a
statute, multiple reasons for this conclusion were provided above and beyond that the
police action at issue was not unconstitutional. These reasons included the inevitability
of the officers’ entrance into the home, Stevens, 460 Mich at 646; the fact that the
violation could be characterized as a ministerial error, not misconduct, Sobczak-Obetts,
463 Mich at 710; and that suppressing evidence would not serve the purpose of the
exclusionary rule. Hawkins, 468 Mich at 511. The Hamilton Court did not employ a
similar analysis when extending the holdings of those cases to the violation of MCL
764.2a.
I would revisit our statutory suppression jurisprudence and its extension in People
v Hamilton to violations of MCL 764.2a. However, Hamilton remains good law, and the
Court of Appeals’ reliance on this binding precedent was not clearly erroneous.
Moreover, defendant has not asked us to revisit our Hamilton decision. Therefore, I
concur with the Court’s denial order.
I, Larry S. Royster, Clerk of the Michigan Supreme Court, certify that the
foregoing is a true and complete copy of the order entered at the direction of the Court.
July 30, 2021
p0727
Clerk