People v. Kroll

• Decision Date: 20 October 1989
• Docket Number: Docket No. 111356
• Citation: 446 N.W.2d 317,179 Mich.App. 423
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Gary Lynn KROLL, Defendant-Appellant. 179 Mich.App. 423, 446 N.W.2d 317
• Court: Court of Appeal of Michigan — District of US

Page 317

446 N.W.2d 317

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Gary Lynn KROLL, Defendant-Appellant.

Docket No. 111356.

179 Mich.App. 423, 446 N.W.2d 317

Court of Appeals of Michigan.

Submitted April 12, 1989.

Decided Aug. 9, 1989.

Released For Publication Oct. 20, 1989.

[179 MICHAPP 424] Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., Harold F. Closz, III, Pros. Atty., and Kevin A. Lynch, Asst. Pros. Atty., for the People.

Vander Ploeg, Ruck, Luyendyk & Wells by Douglas M. Hughes, Muskegon, for defendant-appellant on appeal.

Before SHEPHERD, P.J., and HOLBROOK, and McDONALD, JJ.

PER CURIAM.

In this interlocutory appeal, defendant appeals by leave granted from an August 15, 1988, pretrial order denying his motion to suppress certain blood-test evidence. We affirm.

On March 26, 1988, defendant was involved in an automobile accident when his vehicle collided with a second vehicle driven by Lori Kay Blankenship. Blankenship died as a result of injuries sustained in the accident. Defendant was transported while unconscious to a local medical facility, where blood was drawn and evaluated for purposes of medical treatment. The blood test revealed an alcohol level of 0.31 percent.

Pursuant to Sec. 625a(9) of the so-called implied consent [179 MICHAPP 425] statute, M.C.L. Sec. 257.625a(9); M.S.A. Sec. 9.2325(1)(9), ¹ the blood-alcohol test results were turned over to the prosecution. Defendant was charged with manslaughter, M.C.L. Sec. 750.321; M.S.A. Sec. 28.553, as a result of Blankenship's death.

On July 18, 1988, in People v. Perlos, 170 Mich.App. 75, 428 N.W.2d 685 (1988), a panel of this Court held that M.C.L. Sec. 257.625a(9); M.S.A. Sec. 9.2325(1)(9) is unconstitutional because it permits searches and seizures without warrant of a conscious driver's blood in violation of U.S. Const., Am. IV and Const. 1963, art. 1, Sec. 11, and violates a conscious driver's equal protection rights guaranteed by U.S. Const., Am. XIV, Sec. 1 and Const. 1963, art. 1, Sec. 2. The rationale behind the equal protection holding was that there is no rational basis for denying conscious drivers who are in the hospital the same opportunity to refuse a blood test as is granted to conscious drivers who are not in the hospital. Id., pp. 89-90, 428 N.W.2d 685.

The prosecution responded to the Perlos decision by obtaining a search warrant on August 5, 1988, to obtain the medical record containing defendant's blood-test results. The search warrant was executed the same day. Four days later on August 9, 1988, defendant filed a motion to suppress evidence[179 MICHAPP 426] of the blood-test results based on the Perlos decision.

At the August 15, 1988, hearing on the motion, the trial court refused to follow the holding in Perlos regarding the constitutionality of the statute. The trial court held that evidence of the blood-test results was admissible under the statute and, in any event, would be admissible under the alternative arguments made by the prosecutor as to inevitable discovery, independent source or good faith.

On appeal, defendant contends that the trial court erred in refusing to follow the Perlos holding regarding the constitutionality of M.C.L. Sec. 257.625a(9); M.S.A. Sec. 9.2325(1)(9). We agree. A published opinion of this Court has precedential effect under the rule of stare decisis. MCR 7.215(C)(2). As such, a trial judge is constrained to follow a decision by any panel of this Court unless it is contradicted by another panel or overruled by our Supreme Court. In the Matter of Hague, 412 Mich. 532, 552, 315 N.W.2d 524 (1982), reh. den. 413 Mich. 1106 (1982); Moorhouse v. Ambassador Ins. Co., Inc., 147 Mich.App. 412, 417, 383 N.W.2d 219 (1985), lv. den. 425 Mich. 856 (1986).

Nevertheless, we conclude that the trial court's error does not require reversal because the trial court correctly ruled that the inevitable discovery doctrine also supports the admission of the evidence of the blood-test results.

In reaching this conclusion, we begin by noting that, unlike the trial court, we are not required to follow the opinion of another panel of this Court, although we normally do so unless cognizant reasons appear for not doing so. Moorhouse, supra, p. 417, 383 N.W.2d 219. While the instant appeal was pending, the panel in Perlos granted rehearing and another panel of this Court, in a case involving a defendant[179 MICHAPP 427] who was apparently semiconscious when his blood was drawn at a hospital for purposes of medical treatment, upheld the constitutionality of M.C.L. Sec. 257.625a(9); M.S.A. Sec. 9.2325(1)(9) contrary to the Perlos decision. See People v. England, 176 Mich.App. 334, 438 N.W.2d 908 (1989).

The instant case is factually distinct from both Perlos and England since it involves a defendant who undisputedly was unconscious when his blood was drawn at the hospital for purposes of medical treatment. Further, the record shows that this same evidence was subsequently obtained pursuant to a valid search warrant.

At the center of the controversy here is whether evidence of the blood-test results must be suppressed under the exclusionary rule of Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963), as the so-called fruit of the poisonous tree. Under this exclusionary rule, the appropriate inquiry, where a defendant claims that physical evidence should be suppressed as a result of an unlawful seizure, is whether that evidence was procured by an exploitation of the illegality or, instead, by means sufficiently distinguishable to be purged of the primary taint. People v. Jones, 66 Mich.App. 223, 230-231, 238 N.W.2d 813 (1975), modified on other grounds 397 Mich. 871, 291 N.W.2d 923 (1976). This is not a "but for" test, but rather depends on whether there has been an exploitation of the primary illegality. Jones, supra.

The primary illegality here stems from the fact that the blood-test results were initially obtained without a search warrant pursuant to a statute that was declared unconstitutional in Perlos. In the event that the Perlos rationale is followed, the prosecution argues that there was no exploitation of the primary illegality because it later obtained the same evidence under a valid search warrant [179 MICHAPP 428] and, hence, was admissible pursuant to the inevitable discovery exception to the exclusionary rule. By contrast, defendant contends that the only question is whether the evidence was obtained by means of an independent source and that, pursuant to Perlos, a consideration of the independent source doctrine does not justify admitting the evidence because the prosecutor already had knowledge and possession of the evidence before the search warrant was obtained.

The panel in Perlos recently reversed its position on the independent source doctrine and remanded to the lower court to determine whether the evidence which was obtained without a warrant, may be purged of any taint by the prosecutor's establishment of independent acquisition of the evidence. See People v. Perlos (On Rehearing), 177 Mich.App. 657, 442 N.W.2d 734 (1989). In any event, the independent source and inevitable discovery doctrines provide separate and distinct exceptions to the exclusionary rule. In Nix v. Williams, 467 U.S. 431, 443-444, 104 S.Ct. 2501, 2508-2509; 81 L.Ed.2d 377 (1984), the United States Supreme Court, in comparing the inevitable discovery and independent source doctrines, stated:

[T]he 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[179 MICHAPP 429] 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 would have obtained that evidence if no misconduct had taken place. Thus, while the independent source exception would not justify admission of evidence in this case, its rationale is wholly consistent with and justifies our adoption of the ultimate or inevitable discovery exception to the exclusionary rule. [Emphasis in original.]

The purpose of the inevitable discovery doctrine is to block setting aside convictions that would have been obtained without police misconduct. 467 U.S. at 443, n. 4, 104 S.Ct. at 2509, n. 4. The inevitable discovery doctrine is recognized in Michigan and may justify the admission of otherwise tainted evidence which ultimately would have been obtained in a constitutionally accepted manner. People v. Spencer, 154 Mich.App. 6, 397 N.W.2d 525 (1986); People v. Harajli, ...