People v. Gallego

• Decision Date: 01 June 1988
• Docket Number: No. 76904,76904
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee v. Luis GALLEGO, Defendant-Appellant. 430 Mich. 443, 424 N.W.2d 470, 57 U.S.L.W. 2026
• Court: Michigan Supreme Court

Page 470

424 N.W.2d 470

PEOPLE of the State of Michigan, Plaintiff-Appellee v. Luis GALLEGO, Defendant-Appellant.

No. 76904.

430 Mich. 443, 424 N.W.2d 470, 57 U.S.L.W. 2026

Supreme Court of Michigan.

Argued March 3, 1987.

Decided June 1, 1988.

Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., L. Brooks Patterson, Pros. Atty., Oakland County, Robert C. Williams, Chief, Appellate Div. by Thomas S. Richards, Asst. Pros. Atty., Pontiac, for plaintiff-appellee.

James W. Burdick, Southfield, for defendant-appellant.

James Schuster, Southfield, for amicus curiae American Civil Liberties Union on behalf of the American Civil Liberties Union Fund of Michigan.

Before the Entire Bench.

BRICKLEY, Justice.

This case of first impression requires us to decide whether defendant, aggrieved by the breach of an unauthorized, non-plea agreement with the police, providing that he not be prosecuted, is entitled to specific performance of that agreement. We hold that he is not and that, on the facts of this case, suppression or exclusion of the written agreement made with the police and of the "buy money" is a more appropriate remedy. Thus, we affirm the judgment of the Court of Appeals.

I

This interlocutory appeal arises out of a drug transaction involving defendant Luis Gallego, his codefendant Albert Bueno, the Oakland County Narcotics Enforcement Team, and the Federal Drug Enforcement Agency (DEA). On the evening of February 1, 1982, Gallego and Bueno met with Michigan State Police Trooper Terry Saldana. After exchanging approximately $33,000 in cash for a pound of cocaine, Saldana gave the "buy-bust" signal to the police surveillance crew. Saldana briefly lost sight of Gallego. Unfortunately, after the police tackled Gallego as he attempted to climb a snowbank, they discovered he no longer had the $33,000 in his possession. The police began a search for the money but the search proved fruitless.

Eventually, labor law attorney John Lyons, summoned by Gallego's sister-in-law, appeared at the scene. During the course of conversations with officers at the scene, DEA agent Dodson indicated to Lyons that he did not want to pursue a federal prosecution against Gallego, but only wanted the money back. Apparently, state police undercover agent John Smiley was hesitant to agree to immunity in exchange for the $33,000. After consulting with a superior officer at the scene, however, he too agreed that the state would not prosecute if defendant returned the money. Neither the Oakland County Prosecutor nor the United States Attorney authorized or approved the agreement. Executed in writing and signed by agent Dodson, officer Smiley and John Lyons, the agreement provided as follows:

"Special Agent William R. Dodson of the Dept. of Justice Drug Enforcement Admin. Detroit, MI hereby states that Drug Enforcement Admin. will not charge Luis Fernando with any violation of the Federal Controlled Substance Act that was committed on Feb. 1 and 2 in Oakland County. The drug offense in particular is the delivery of one pound of cocaine by Fernando to Michigan State Police officer on Feb. 1, 1982 for $30,000.

"In return for this offer Luis Fernando will return $30,000 of the Michigan State Funds to the Michigan State Police prior to Feb. 2, 1982 6:00 AM. The $30,000 was given to Fernando by a Michigan State Police officer for the purchase of one pound of cocaine on Feb. 2, 1982.

"If Fernando does not return the $30,000 to the M.S.P. by Feb. 2, 1982 6:00 A.M. this offer is void. The above offer also holds true for any Michigan State charges against Fernando that were committed on Feb. 1 & 2, 1982." People v Gallego, Defendant-Appellant's Brief on Appeal, Appendix, p 2a(i).

Subsequently, Gallego informed the officers of the money's location; they retrieved the money and released defendant.

Several months later, the police sought a warrant against codefendant Bueno, but not Gallego. At that time, the above agreement came to the attention of the Oakland County Prosecutor. The prosecutor did not feel bound by the agreement and consequently charged defendant with delivery of cocaine. See M.C.L. Secs. 333.7401(1), (2)(a)(ii), 333.7214(a)(iv); M.S.A. Secs. 14.15(7401)(1), (2)(a)(ii), 14.15(7214)(a)(iv).

Upon conclusion of his preliminary examination, defendant moved for dismissal of the charges on the basis of the agreement he made with undercover officers. The district court judge, the Honorable Gus Cifelli, granted defendant's motion and dismissed the charges. The Oakland Circuit Court affirmed the dismissal, concluding that the integrity of the state's criminal justice system rested on the enforcement of agreements entered into by law enforcement officials.

On appeal by the people, the Court of Appeals reversed the judgment of the circuit court, concluding that the police lacked the authority to bind the prosecutor to a pledge of immunity and that defendant did not rely to his detriment on the agreement, 143 Mich.App. 639, 372 N.W.2d 640. Although concerned about the conduct of the police and the ability of the exclusionary rule to protect defendant's rights, the Court ultimately found that exclusion of the illegally seized evidence was a more appropriate remedy than dismissal.

"We are concerned that the exclusionary rule will not adequately protect defendant's rights in this situation. The officers wanted the return of the money more than they wanted to prosecute defendant and, if faced with a similar situation in the future, would probably do the same thing. At the same time, this violation of defendant's rights should not erase, in the eyes of the law, evidence of defendant's criminal activity which was properly obtained and not traceable to this violation of his rights. Moreover, the people would be barred from prosecuting if all the evidence against the accused was traceable to the unauthorized pledge of immunity from the officers. See [In re ] Doe, [410 F.Supp. 1163 (E.D.Mich.1976) ].

"Dismissal is a drastic remedy seldom available.

" 'Our numerous precedents ordering the exclusion of such illegally obtained evidence assume implicitly that the remedy does not extend to barring the prosecution altogether. So drastic a step might advance marginally some of the ends served by exclusionary rules, but it would also increase to an intolerable degree interference with the public interest in having the guilty brought to book.' United States v Blue, 384 US 251, 255; 86 S Ct 1416 [1419]; 16 L Ed 2d 510 (1966).

"Accordingly, we find that the proper remedy is to exclude the illegally seized evidence. As the agreement amounts to an involuntary confession, People v Paintman, 139 Mich App 161; 361 NW2d 755 (1984), such agreement may not be utilized as evidence or for impeachment purposes. People v Switzer, 135 Mich App 779; 355 NW2d 670 (1984)." People v. Gallego, 143 Mich.App. 639, 642-643, 372 N.W.2d 640 (1985).

Defendant then applied for, and this Court granted, leave to appeal. ¹

II

The plea agreement cases are the natural starting point for any analysis of agreements between criminal defendants and law enforcement officials. In Santobello v. New York, 404 U.S. 257, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971), a seminal decision in the area of plea bargains, the United States Supreme Court recognized a constitutional right to relief, apparently rooted in the Due Process Clause of the federal constitution, ² for the violation of an authorized plea agreement. Yet in remanding to the state court for a remedy determination, the Court left unanswered the question whether it recognized a constitutional right to a particular remedy such as specific performance.

"Santobello [stood] for the proposition that state and federal courts alike have a constitutional obligation to give some relief to defendants aggrieved by broken plea agreements. But the decision [left] the lower courts without clear guidance to decide what kinds of remedies are appropriate, and whether any particular remedy is ever constitutionally required in any given case." Westen & Westin, A constitutional law of remedies for broken plea bargains, 66 Cal L R 471, 476 (1978).

In Mabry v. Johnson, 467 U.S. 504, 104 S.Ct. 2543, 81 L.Ed.2d 437 (1984), however, the Court indicated, in dicta, that in Santobello it had not held that the constitution compelled specific performance as the remedy for the breach of a plea agreement.

"Indeed, even if [defendant's] plea were invalid, Santobello expressly declined to hold that the Constitution compels specific performance of a broken prosecutorial promise as the remedy for such a plea; the Court made it clear that permitting Santobello to replead was within the range of constitutionally appropriate remedies." Mabry, supra, at 510, n. 11, 104 S.Ct. at 2548, n. 11 (citations omitted).

Thus, Santobello certainly does not support the proposition that the constitution ³ compels specific performance as the remedy for the breach of an unauthorized, non-plea agreement.

In addition, we reject the implication that this Court's decision in People v. Reagan, 395 Mich. 306, 235 N.W.2d 581 (1975), mandates specific performance. Reagan is clearly distinguishable from the case at bar. In Reagan, this Court granted the defendant specific performance of an agreement, reneged on by the prosecutor, which essentially promised the defendant he would not be prosecuted if he passed a polygraph exam. ⁴ The agreement in Reagan, however, unlike the agreement in the case at bar, was authorized and involved the input of the prosecutor. Moreover, even though this Court granted the defendant specific performance in Reagan, our decision did not rest on constitutional grounds. Therefore, we conclude that neither Santobello nor Reagan represent authority for a grant of specific performance in this case. And we are not persuaded that such a remedy should now be employed.

III

We base our decision to deny defendant specific performance on the fact that the police...