People v. Harajli

• Decision Date: 04 April 1986
• Docket Number: Docket No. 83877
• Citation: 148 Mich.App. 189,384 N.W.2d 126
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Zouhair HARAJLI and Ali Dakroub, d/b/a/ Sam's Pit Stop, Inc., Defendants-Appellees.
• Court: Court of Appeal of Michigan — District of US

Page 126

384 N.W.2d 126

148 Mich.App. 189

PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Zouhair HARAJLI and Ali Dakroub, d/b/a/ Sam's Pit Stop, Inc., Defendants-Appellees.

Docket No. 83877.

Court of Appeals of Michigan.

Submitted Nov. 13, 1985.

Decided Jan. 6, 1986.

Released for Publication April 4, 1986.

Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., and E. David Brockman, Asst. Atty. Gen., for the People.

Warren H. Siegel, Southfield, for defendants-appellees.

Before BEASLEY, P.J., and V.J. BRENNAN and CYNAR, JJ.

CYNAR, Judge.

Defendants were originally charged with sales tax evasion, M.C.L. Sec. 205.27; M.S.A. Sec. 7.657(27), in a ten-count information which alleged, inter alia, that for the last ten months of 1982 defendants evaded payment of Michigan sales tax by understating wholesale purchases of gasoline, failing to report sales and falsifying records from the operation of a retail gas service station called Sam's Pit Stop in the City of Taylor. A preliminary examination was held on October 14, 1983, in Wayne County Circuit Court and defendants were bound over on nine of the ten charges. Defendants subsequently brought a motion to suppress the evidence on the basis that it had been seized during a search without a warrant and without consent. Defendants also moved to dismiss the charges due to selective prosecution. On January 28, 1985, the trial court granted defendants' motion to suppress the evidence seized during the illegal search and denied defendants' motion to dismiss. The people appeal the lower court's ruling to suppress the evidence by leave of this Court.

On December 2, 1982, the Special Investigation Division of the Michigan Department of Treasury (SID) received information from a citizen tip concerning alleged tax violations at Sam's Pit Stop, defendants' place of business. On December 29, 1982, two SID agents visited Sam's Pit Stop for the purpose of determining the identity of the sales tax licensee at that location. The parties concede that, while the SID agents were visiting the premises, they proceeded to conduct a search and illegally seized invoices and other documents in violation of defendants' federal and state guaranteed rights against illegal searches and seizures. U.S. Const., Am. IV; Michigan Const., 1963, art. 1, Sec. 11. Included among the records seized were records identifying Royal Gas and Oil Co. and Dandy Oil as suppliers of gasoline to Sam's Pit Stop.

The people presented evidence at the hearing on the motion which, if believed, indicates that in November, 1982, Mr. Ralph Davis, head of the civil audit section of the Detroit Office of the Department of Treasury (Department), requested and received audit assignments on several wholesale distributors of gasoline in the Detroit area. Royal Oil and Dandy Oil were included in the audit assignments. As a result of information learned from the audit of Royal, Davis requested in February, 1983, a civil audit assignment of defendants' business. At the time of his request, Davis did not know that a criminal investigation of defendants' business was pending. Davis learned of the criminal investigation when he received the audit assignment in February, 1983. Davis then delivered the information that he had gathered relative to the wholesale of gasoline by Royal Oil to defendants' business to an SID agent, Lloyd Bushor, and ceased further processing of the civil audit. The results of the civil audit of Dandy Oil were subsequently delivered to the SID.

On appeal the people argue that the trial court erred in granting defendants' motion to suppress because the challenged evidence was discovered by a means which was independent of the illegal seizure. ¹ We note that the people argued in the trial court that, because the evidence would have been inevitably discovered through the "parallel investigation" of the civil division of the Department, defendants' motion to suppress should be denied.

The United States Supreme Court explained the inevitable discovery and independent source exceptions to the exclusionary rule in Nix v. Williams, 467 U.S. 431, ----, 104 S.Ct. 2501, 2508-09, 81 L.Ed.2d 377, 386-388 (1984):

"The core rationale consistently advanced by this Court for extending the Exclusionary Rule to evidence that is the fruit of unlawful police conduct has been that this admittedly drastic and socially costly course is needed to deter police from violations of constitutional and statutory protections. This Court has accepted the argument that the way to ensure such protections is to exclude evidence seized as a result of such violations notwithstanding the high social cost of letting persons obviously guilty to unpunished for their crimes. On this rationale, the prosecution is not to be put in a better position than it would have been in if no illegality had transpired.

"By contrast, the derivative evidence analysis ensures that the prosecution is not put in a worse position simply because of some earlier police error or misconduct. The independent source doctrine allows admission of evidence that has been discovered by means wholly independent of any constitutional violation. * * * The independent source doctrine teaches us that the interest of society in deterring unlawful police conduct and the public interest in having juries receive all probative evidence of a crime are properly balanced by putting the police in the same, not a worse, position than they would have been in if no police error or misconduct had occurred. * * * When the challenged evidence has an independent source, exclusion of such evidence would put the police in a worse position than they would have been in absent any error or violation. There is a functional similarity between these two doctrines in that exclusion of evidence that would inevitably have been discovered would also put the government in a worse position, because the police...