People v. Newman, SC: 161906

• Court: Supreme Court of Michigan
• Citation: 962 N.W.2d 191 (Mem)
• Decision Date: 30 July 2021
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Anthony Lemar NEWMAN, Defendant-Appellant.
• Docket Number: COA: 348846,SC: 161906

962 N.W.2d 191 (Mem)

PEOPLE of the State of Michigan, Plaintiff-Appellee,
v.
Anthony Lemar NEWMAN, Defendant-Appellant.

SC: 161906
COA: 348846

Supreme Court of Michigan.

July 30, 2021

Order

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

962 N.W.2d 192

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.

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 People v Newman , unpublished per curiam opinion of the Court of Appeals, issued July 2, 2020 (Docket No. 348846), 2020 WL 3621279. 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, 638 N.W.2d 92 (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, 641 N.W.2d 587 (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, 638 N.W.2d 92, 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, 638 N.W.2d 92. 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

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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 arrests, not merely statutorily invalid arrests." Id. at 532-533, 638 N.W.2d 92, citing People v Lyon , 227 Mich App 599, 611, 577 N.W.2d 124 (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, 638 N.W.2d 92, citing People v Meyer , 424 Mich. 143, 379 N.W.2d 59 (1985), and People v Burdo , 56 Mich App 48, 223 N.W.2d 358 (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, 638...