People v. Bruce

• Decision Date: 25 July 2019
• Docket Number: 156828,Docket Nos. 156827,Calendar No. 1
• Citation: 939 N.W.2d 188,504 Mich. 555
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Terence Mitchell BRUCE, Defendant-Appellee. People of the State of Michigan, Plaintiff-Appellant, v. Stanley Lyle Nicholson, Defendant-Appellee.
• Court: Michigan Supreme Court

504 Mich. 555

939 N.W.2d 188

PEOPLE of the State of Michigan, Plaintiff-Appellant,

v.Terence Mitchell BRUCE, Defendant-Appellee.

People of the State of Michigan, Plaintiff-Appellant,

v.Stanley Lyle Nicholson, Defendant-Appellee.

Docket Nos. 156827

156828

Calendar No. 1

Supreme Court of Michigan.

Argued March 6, 2019 Calendar No. 1

Decided July 25, 2019

Cavanagh, J.

In these consolidated cases we consider whether defendants, who were federal border patrol agents operating as part of a joint task force enforcing Michigan law, are public officers for purposes of the common-law offense of misconduct in office. The crux of this question is how to categorize their offices—solely as border patrol agents or as federal agent task force members enforcing Michigan law. We hold that the categorization depends on the duties exercised by defendants and the color of office under which defendants acted. In these cases, because defendants exercised duties of enforcement of Michigan law and acted under authority granted to them by Michigan statute, they acted as public officers. Accordingly, we reverse the Court of Appeals and remand to that Court for consideration of defendants' remaining issues.

I. FACTS AND PROCEDURAL HISTORY

Defendants, Terence Bruce and Stanley Nicholson, were federal border patrol agents assigned to a Hometown Security Team (HST) task force operating in Jackson County in December 2014. The HST is a "criminal intervention team" assigned mostly to freeways and that focuses on drugs and firearms. At the time, the HST consisted of Michigan State Police troopers, border patrol agents, and other officers.

Defendants were "embedded" with the HST, meaning that they did not have other duty assignments; they worked with the HST every shift. They took orders from superiors in the HST, and defendant Nicholson testified that he considered himself to have "peace officer status," that he adopted the authority of the HST, and that he participated in the law enforcement duties the HST performed. If the HST executed a search warrant, defendants took part.

On the evening of December 23, 2014, an HST patrol unit consisting of a Michigan State Police trooper and a border patrol agent executed a traffic stop against Benjamin Scott. The trooper searched Scott’s car and found marijuana trimmings and proof of his residency. The investigation then incorporated another task force, the Jackson Narcotics Enforcement Team (JNET). HST and JNET obtained a search warrant for two residences Scott was renting and held a joint briefing to prepare to execute the warrant.

Defendants attended the briefing, which addressed team member assignments for the raid and contingencies such as where to retreat if shots were fired and which hospital to use if necessary. Defendants were assigned to ensure perimeter security during the initial entry and then to help search the homes and remove confiscated evidence. HST and JNET made entry and spent most of the evening and early morning disassembling and removing an elaborate marijuana-growing operation from the basements of the homes. The task forces seized grow lights, ballasts, netting, and marijuana plants. A careful tabulation was kept of every item taken that noted whether it was evidence of a crime or subject to forfeiture as proceeds of a crime. But defendants took additional property not included on the tabulation.

Defendant Nicholson took an antique thermometer and barometer device. He said that it was rusty and dirty, and he insisted that "it really was junk" when he removed it but that he intended to clean it up. According to defendant Nicholson, he took the device to his workshop where he tried to clean the lens with a rotary tool, but he accidentally burrowed through, making the device useless. After ruining the device, he discarded it and "gave it no other thought, it was trash." But it had not been trash to Scott. The device had been given to Scott by his grandfather, who had received it from his father. It was a family heirloom.

Defendant Bruce took a wheeled stool with a leather seat home with him and kept it until he was asked about it by the HST team leader. When asked, Bruce admitted that he took the stool. He then returned it to the Michigan State Police post in Jackson.

Defendants were charged with common-law misconduct in office as well as larceny in a building. Each moved for pretrial dismissal and midtrial directed verdicts, arguing that they were not public officers for purposes of the misconduct-in-office offense. The trial court denied the motions for pretrial dismissal and midtrial directed verdicts in both cases. Ultimately the jury convicted defendants of misconduct in office but acquitted them of larceny in a building.

Defendants appealed and challenged their convictions on multiple grounds, including that they were not public officers for purposes of the misconduct-in-office offense. The Court of Appeals agreed that defendants were not public officers and vacated the convictions. People v. Bruce , unpublished per curiam opinion of the Court of Appeals, issued October 5, 2017 (Docket Nos. 331232 and 331233) 2017 WL 4445823. The prosecution sought leave to appeal in this Court, and we granted the application to address "whether the defendant federal border patrol agents were ‘public officers’ for purposes of the common-law crime of misconduct in office when they assisted—as members of a law enforcement task force that included Michigan State Police and Michigan motor carrier officers—in the execution of a search warrant." People v. Bruce , 501 Mich. 1026, 1026, 908 N.W.2d 301 (2018).

II. STANDARD OF REVIEW

Whether defendants are public officers is a question of law that we review de novo. People v. Coutu , 459 Mich. 348, 353, 589 N.W.2d 458 (1999). Interpretation and application of statutes are also questions of law that we review de novo. Id.

III. ANALYSIS

Often, appellate consideration of the common-law offense of misconduct in office has been a vertical inquiry into whether a defendant’s status was more than that of an "employee," to the point of becoming a "public officer." Defendants argue that although they were executing a search warrant as HST team members, their status as border patrol agents makes this a horizontal problem that allows them to escape sideways from the common-law responsibilities at issue. We hold that the proper perspective of defendants' offices is determined by the duties they exercised and the color of office under which they acted. From that perspective, we see that defendants were public officers.

The idea that people who wield the power of the state are required to do so responsibly is not new. More than 20 years ago we observed that the common law describes the offense of misconduct in office as " ‘corrupt behavior by an officer in the exercise of the duties of his office or while acting under color of his office.’ " Coutu , 459 Mich. at 354, 589 N.W.2d 458, quoting Perkins & Boyce, Criminal Law (3d ed.), p. 543. Public officers had been held accountable under the offense long before,¹ and public officers in Michigan have continued to be held accountable under the offense since.²

In Coutu , 459 Mich. 348, 589 N.W.2d 458, we considered the question whether a deputy sheriff is a public officer. There, we built on the foundation of People v. Freedland , 308 Mich. 449, 14 N.W.2d 62 (1944), in constructing our understanding of who qualifies as an officer. Freedland had considered many authorities, including State v. Hawkins , 79 Mont. 506, 257 P. 411, 418 (1927), which defined "public office of a civil nature" for purposes of Montana’s constitutional prohibition on legislators holding multiple positions. The Hawkins court concluded that "five elements are indispensable" in any such office:

(1) It must be created by the Constitution or by the Legislature or created by a municipality or other body through authority conferred by the Legislature; (2) it must possess a delegation of a portion of the sovereign power of government, to be exercised for the benefit of the public; (3) the powers conferred, and the duties to be discharged, must be defined, directly or impliedly, by the Legislature or through legislative authority; (4) the duties must be performed independently and without control of a superior power, other than the law, unless they be those of an inferior or subordinate office, created or authorized by the Legislature, and by it placed under the general control of a superior officer or body; (5) it must have some permanency and continuity, and not be only temporary or occasional. [ Id. ]

Freedland quoted these five factors, among other considerations. Freedland , 308 Mich. at 457-458, 14 N.W.2d 62. Coutu noted these same factors and also added that oath and bond requirements are "of assistance" in determining whether a defendant is a public officer. Coutu , 459 Mich. at 355, 589 N.W.2d 458. The parties in this matter agree that Coutu identifies the relevant factors.³

The central problem of this case is how to categorize defendants for purposes of the Coutu analysis. Should we view defendants solely as border patrol agents or as federal agent HST members enforcing Michigan law? Again, defendants were charged with " ‘corrupt behavior by an officer in the exercise of the duties of his office or while acting under color of his office.’ " Id. at 354, 589 N.W.2d 458, quoting Perkins & Boyce, p. 543. The relevant office to analyze must be determined by which duties defendants were exercising and the color of office under which defendants were acting.

In some ways the categorization problem here is similar to that in People v. Perkins , 468 Mich. 448, 662 N.W.2d 727 (2003). In Perkins , the defendant was a deputy sheriff who was prosecuted for acts arising from his sexual relationship with a 16-year-old girl. Id. at 450, 662 N.W.2d 727. The charged offenses included misconduct in office. Id. at 449, 662 N.W.2d 727. By then we had already decided that a deputy...