Opinion
357233
08-25-2022
PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellant, v. ANTHONY MAYE, Defendant-Appellee.
Macomb Circuit Court LC No. 2020-000160-AR
Before: BOONSTRA, P.J., and GADOLA and HOOD, JJ.
GADOLA, J.
Plaintiff appeals on leave granted the order of the circuit court reversing the order of the district court that denied defendant's motion to quash the warrant and complaint. We reverse and remand.
I. FACTS
On August 26, 2019, police officers were surveilling the home of defendant, Anthony Maye, for suspected drug trafficking. When defendant left his home in his vehicle, the surveilling officers alerted a canine unit officer with the Michigan State Police, who thereafter stopped defendant's vehicle for a traffic infraction. The canine unit police dog circled the vehicle, then jumped into the vehicle. The canine unit officer related this information to the other officers, who then searched defendant's vehicle and discovered 125 grams of cocaine under the driver's seat and cash in the center console. The officers thereafter searched defendant's home with a warrant obtained based upon the evidence found during the search of defendant's vehicle. At defendant's home, the officers found 387 grams of cocaine in plastic bags, two digital scales with cocaine residue, and four guns, one of which had been reported stolen. Defendant was charged with possession with intent to deliver 450 or more grams but less than 1,000 grams of cocaine, MCL 333.7401(2)(a)(ii); possession of a firearm during the commission of a felony (felony-firearm), MCL 750.227b; receiving and concealing stolen property, MCL 750.535; felon in possession of a firearm, MCL 750.224f; and maintaining a drug house, MCL 333.7405(1)(d).
At the preliminary examination before the district court, Sergeant Travis Crooks with the St. Clair Shores Police Department testified that he was involved in the surveillance of defendant's home and that he was present during the traffic stop of defendant's vehicle by the canine unit trooper. Sergeant Crooks testified that he watched as the police dog circled the vehicle, and that the dog made "an indication" to the canine unit trooper that drugs were in the vehicle before jumping in the vehicle. The district court sustained the defense objection that Sergeant Crooks was not an expert in canine training and identification and precluded Sergeant Crooks from testifying regarding what the dog indicated. Sergeant Crooks then testified that after the canine unit trooper removed the dog from the vehicle, the trooper made a statement to Crooks, and Crooks then searched the vehicle, discovering the drugs and the cash in the vehicle. Sergeant Crooks testified that the police subsequently executed a search of defendant's home, finding additional cocaine, drug paraphernalia, and guns.
The prosecutor requested to continue the preliminary examination to enable her to call the canine unit trooper to explain that the police dog indicated to the officers that drugs were located in defendant's vehicle before the officers searched the vehicle. After the prosecution explained what she anticipated the canine unit trooper would say if called to testify, defense counsel stipulated to certain proposed testimony for purposes of expediency. In light of the stipulation, the prosecutor rested her case and requested that the trial court bind over defendant as charged, or permit her to call the canine unit officer as a witness.
The district court then ruled on the bindover request. The district court held that the traffic stop was constitutional because the officers had a valid basis to stop defendant, but that the search of the vehicle was not supported by probable cause because there was "no testimony here as to what the dog alerted to . . . outside of the vehicle. We did not have M.S.P. [the canine unit officer] here today. We had an officer, who is not a trained canine officer; who cannot testify as to what a canine's alerts indicate or don't indicate." The prosecutor requested to continue the preliminary examination at a future date to enable her to call the canine unit trooper as a witness, or a stay of proceedings to enable an appeal to the circuit court. The district court denied the stay, amended Count I to specify delivery of 50 to 450 grams, MCL 333.7401(2)(a)(iii), and bound defendant over on Counts II, III, and V. The district court did not find probable cause to bind defendant over on Count IV, felon in possession of a firearm, because there was no certified copy of conviction offered into evidence.
Before the circuit court, defendant moved to quash the search warrant and complaint, arguing that the search of the home was unconstitutional because it was based on the illegal search of the car. The prosecution requested that the charges be dismissed, and the circuit court dismissed the charges. The prosecution then refiled the same charges initially filed against defendant.
Once again in the district court, defendant moved to quash the warrant and complaint, arguing that the prosecution was collaterally estopped from again charging him with possession of the cocaine because the district court had previously ruled that the search of the vehicle was unlawful. The district court denied defendant's motion, explaining that its earlier dismissal of Count I of the complaint was without prejudice to the refiling of the charge and rejecting defendant's assertions that he was prejudiced by the refiling of the charge.
The circuit court granted defendant leave to appeal the order of the district court. Before the circuit court, defendant contended that the prosecution was collaterally estopped from refiling the same charges because the district court's order was final. The prosecutor contended that the district court had determined only that there was insufficient evidence to support binding defendant over to the circuit court on the possession count and felon in possession of a firearm count, and that the prosecutor was therefore free to refile the charges and offer additional evidence to support the charges.
The circuit court held that collateral estoppel barred reauthorization of Count I of the complaint that charged defendant with possession of the cocaine. The circuit court explained:
Here, the refusal to bind Appellant over after the preliminary examination was not based on a failure to present certain evidence, but the district court's determination that the evidence submitted was the result of an illegal search which would preclude its consideration. Therefore, the Court does not find that prior caselaw or the Michigan Court Rules preclude this Court from applying collateral estoppel in this case, because the district court made a determination on a factual issue. The proper procedure for Appellee thereafter was to file a motion for reconsideration or an appeal of the decision, rather than attempting a second bite at the apple by dismissing and refiling the charges.
This Court granted the prosecutor's application for leave to appeal from the order of the circuit court, limited to the issues raised in the application for leave to appeal and the supporting brief. People v Maye, unpublished order of the Court of Appeals, entered September 13, 2021 (Docket No. 357233).
II. DISCUSSION
The prosecution contends that the circuit court erred by reversing the decision of the district court, which denied defendant's motion to quash the charges against him, rejecting defendant's contention that collateral estopped barred the refiling of the complaint. We agree.
The district court's decision to grant or deny a motion to quash an information is reviewed for an abuse of discretion. People v Simon, ___ Mich.App. ___, ___; ___ N.W.2d ___ (2021) (Docket No. 354013); slip op at 5. An abuse of discretion occurs when the court does not select a reasonable and principled outcome. People v Anderson, 501 Mich. 175, 189; 912 N.W.2d 503 (2018). To the extent that a lower court's decision on a motion to quash an information is based upon interpretation of the law, we review the decision de novo. Simon,___ Mich.App. at ___; slip op at 5.
Preliminary examinations are governed by MCR 6.110. People v Dunbar, 463 Mich. 606, 612; 625 N.W.2d 1 (2001). Under MCR 6.110(E), if the district court determines that probable cause exists to believe the defendant committed an offense not cognizable by the district court, the district court must bind the defendant over to the circuit court for trial. Under MCR 6.110(F),
[i]f, after considering the evidence, the court determines that probable cause does not exist to believe either that an offense has been committed or that the defendant committed it, the court must discharge the defendant without prejudice to the prosecutor initiating a subsequent prosecution for the same offense or reduce the charge to an offense that is not a felony. Except as provided in MCR 8.111(C), the
subsequent preliminary examination must be held before the same judicial officer and the prosecutor must present additional evidence to support the charge.
In accordance with this court rule, "the prosecution may reinstate the charges against a defendant where it seeks to present 'additional evidence' at the second examination to the same magistrate who presided over the defendant's preliminary examination." People v Robbins, 223 Mich.App. 355, 361; 566 N.W.2d 49 (1997). Under MCR 6.110(F), additional evidence is not limited to newly-discovered evidence. Id.
In this case, the district court found that probable cause did not exist to bind defendant over on the charge of possession with intent to deliver 450 or more grams of cocaine but less than 1,000 grams of cocaine, MCL 333.7401(2)(a)(ii), because the prosecution failed to present evidence that the officers had probable cause to search the vehicle. Because the district court did not bind defendant over on the possession charge as charged in the complaint, the district court discharged defendant as to that charge "without prejudice to the prosecutor initiating a subsequent prosecution for the same offense." MCR 6.110(F). The prosecution thus was entitled to reinstate that charge against defendant to seek to present additional evidence at the second preliminary examination before the magistrate who presided over the first preliminary examination. See Robbins, 223 Mich.App. at 361.
Defendant argues that the prosecutor could not refile the charges against him in this case because the district court's ruling that the search of the car was unconstitutional bars relitigation of that issue in the second prosecution under the doctrine of collateral estoppel. "Collateral estoppel precludes relitigation of an issue in a subsequent, different cause of action between the same parties where the prior proceeding culminated in a valid, final judgment and the issue was (1) actually litigated, and (2) necessarily determined." People v Gates, 434 Mich. 146, 154; 452 N.W.2d 627 (1990). To satisfy the "actually litigated" requirement, the party against whom collateral estoppel is asserted must have had a full and fair opportunity to litigate the issue. Gates, 434 Mich. at 156-157. An issue is "necessarily determined" "only if it is 'essential' to the judgment." Id. at 158 (citation omitted).
However, "dismissal of a prosecution at preliminary examination raises no bar under res judicata or collateral estoppel to a subsequent prosecution." People v Hayden, 205 Mich.App. 412, 414; 522 N.W.2d 336 (1994). Rather, "[d]ismissal of a defendant at a preliminary examination is without prejudice to renewal of the charges." Id. In Hayden, this Court explained that under MCR 6.110(F), and consistent with common law principles, neither res judicata nor collateral estoppel precluded the prosecutor from refiling charges where the same magistrate presided over both examinations and the prosecutor presented additional evidence to support the charge. Id. at 414. This Court further observed that for purposes of the prosecutor refiling the charges, it was immaterial what issue the prosecution had failed to establish initially. Id. at 415.
Similarly, in People v Price, 69 Mich.App. 363, 364; 244 N.W.2d 363 (1976), the lower court quashed the information on the ground that the arresting police officers lacked probable cause to conduct a warrantless arrest and search of the defendant. The prosecution filed a second complaint involving the same matter, and another preliminary examination was held. At the second examination, additional evidence was presented, and the defendant was bound over and later convicted. On appeal, the defendant argued that collateral estoppel precluded the reissuing of a warrant and information on the same facts. Id. at 369. This Court rejected the defendant's argument:
[T]he collateral estoppel rule would not be applicable to the instant case since there was no determination of an 'ultimate fact,' . . . at the initial preliminary examination. The dismissal which occurred at the first proceeding was a reflection of the examining magistrate's judgment that the evidence was insufficient to justify a warrantless arrest and search. This deficiency was properly cured to the satisfaction of the trial judge in the subsequent preliminary examination. [Id. at 370-373.]
Similarly, the district court in this case ruled at the preliminary examination that the prosecution failed to present evidence that the police dog had indicated that drugs were present in defendant's vehicle, and thus had failed to present evidence of probable cause for the police to search the vehicle. This was not a determination of an ultimate issue of fact, but rather was a determination that the evidence was insufficient to justify a warrantless search, which could be cured at a subsequent preliminary examination. See id.
The circuit court in this case held that "the refusal to bind Appellant over after the preliminary examination was not based on a failure to present certain evidence, but the district court's determination that the evidence submitted was the result of an illegal search which would preclude its consideration." This is a mischaracterization of what the district court ruled. Contrary to the circuit court's conclusion, the district court's refusal to bind over defendant on the drug possession count was based entirely on the prosecution's failure to present certain evidence, namely, evidence that the police dog had alerted the officer to the presence of drugs in defendant's vehicle; the district court concluded that the search was illegal only in the absence of evidence of probable cause. The district court's dismissal of the possession charge at the initial preliminary examination for failure to present sufficient evidence did not collaterally estop subsequent prosecution. See Hayden, 205 Mich.App. at 414. To the extent that the circuit court concluded that collateral estoppel barred the refiling of the charges against defendant, the circuit court erred.
Reversed and remanded. We do not retain jurisdiction.
HOOD, J. (concurring).
I concur in the result and agree that collateral estoppel did not bar the second preliminary examination or relitigation of the district court's suppression order. See People v Hayden, 205 Mich.App. 412, 414-415; 522 N.W.2d 336 (1994), citing People v George, 114 Mich.App. 204, 210; 318 N.W.2d 666 (1982). I write separately to indicate that the procedure the prosecution used to revisit the district court's suppression order-voluntary dismissal and refiling of charges to challenge a suppression order-though not prohibited, is not explicitly contemplated by the court rules. It was irregular. There were more efficient, standardized alternatives available under the court rules, e.g., moving for reconsideration, applying for leave to appeal the district court decision, and challenging the suppression before the circuit court under MCR 6.110(D)(2) and moving to amend the information under People v Goecke, 457 Mich. 442, 455-463; 579 N.W.2d 868 (1998). It remains unclear why the prosecution chose not to use these procedures.
Although collateral estoppel does not bar a second preliminary examination or relitigation of an alleged constitutional violation in cases that are dismissed without prejudice prior to jeopardy attaching, these processes may be barred on other grounds. See George, 114 Mich.App. at 214215 (holding that due process barred the prosecutor from proceeding against defendants on a second complaint and warrant; acknowledging the court's power "to curtail the state's right to repeatedly proceed against the individual in those limited instances when the repeated prosecution clearly constitutes harassment."). Likewise, the principles in Hayden, George, and People v Price, 69 Mich.App. 363; 244 N.W.2d 363 (1976), in no way limit a judicial officer's ability and mandate to make credibility determinations when a party presents new or different testimony related to a previously litigated suppression issue. See People v Anderson, 501 Mich. 175, 184-185; 912 N.W.2d 503 (2018) (holding that a magistrate has a right and a duty at a preliminary examination to consider all the evidence, including the credibility of witnesses).
I. BACKGROUND
The majority opinion accurately describes the factual and procedural background of this case with one caveat: at the conclusion of the preliminary examination, the district judge "suppressed" the fruits of the search. The district court stated, "[T]he canine entering the [vehicle] without any testimony of the probable cause to what-why the canine entered the car, is an illegal search of the vehicle, and I would-and I will suppress the evidence seized from the search of the vehicle." After the prosecution voluntarily dismissed and refiled the charges, the district judge attempted to clarify that rather than suppressing the evidence she was only finding that there was insufficient evidence to support the warrantless search. This may be a distinction without a difference. The only basis for suppressing evidence from a warrantless stop is when there is insufficient evidence to support the lawfulness of a warrantless search or seizure. At a hearing before the circuit court after the prosecution refiled charges, the circuit court acknowledged that this was a suppression order.
II. MECHANISMS FOR CHALLENGING A DISTRICT COURT'S SUPPRESSION ORDER
When the district judge suppressed evidence obtained from the stop at the end of the preliminary examination, the prosecution had three alternate options to review the decision or revisit the issue: (1) the prosecution could have moved for reconsideration, MCR 2.119(F); (2) the prosecution could have applied for leave to appeal to the circuit court, MCL 770.3(2); and (3) the prosecution could have revisited suppression before the circuit court, MCR 6.110(D)(2), and amended the information under Goecke, 457 Mich. at 455-463. Instead of pursuing any of these formal mechanisms for challenging the district judge's decision, the prosecution moved to voluntarily dismiss the charges in the circuit court, reissued the charges in the district court, only to have the suppression issue eventually relitigated in the circuit court anyway. This practice, though not explicitly prohibited absent evidence of bad faith or judge shopping, was a waste of judicial resources, which are increasingly precious in the COVID era, and risked diminishing public faith in prosecutions. Following the existing procedures in the court rules would have saved time, saved resources, and likely reached the same endpoint without risking undermining public confidence in the criminal legal system.
Since its amendment, MCR 6.110(F), largely prevents judge shopping. See MCR 6.110(F) (providing, "Except as provided in MCR 8.111(C), the subsequent preliminary examination must be held before the same judicial officer and the prosecutor must present additional evidence to support the charge.").
Here, the prosecution had three alternative processes to reach its desired outcome- challenging the district court's suppression order-that are normalized in the court rules, do not waste judicial resources, and do not risk the appearance of bad faith.
First, the prosecution could have chosen not to abandon its motion to reopen proofs at the end of the preliminary examination or moved for reconsideration before the district court. See MCR 2.119(F). The district court never ruled on the prosecution's oral motion to adjourn or reopen proofs. At the end of the preliminary examination, the district court appeared to offer the prosecution an opportunity to pursue its motion, or hear the court's decision. The prosecution did not appear to respond, apparently abandoning its motion to reopen proofs. It remains unclear why the prosecution chose to dismiss and reissue charges after the bind over instead of pursuing its motion to reopen proofs to call the canine officer, or moving for the court to reconsider.
Second, the prosecution could have applied for leave to appeal to the circuit court. See MCL 770.3(2); MCR 7.103(B)(1). A party may apply for leave to appeal to the circuit court from an interlocutory judgment or order in a felony or misdemeanor case. See MCL 770.3(2). This course would have allowed the prosecution to ask the circuit court to review the district court's decision on suppression. It appears that the prosecution may have considered this, when, after the district court's decision, the prosecutor moved for a stay to allow the prosecution to appeal the decision. Because the district court denied the motion for a stay and bound over lesser charges instead of dismissing the case in its entirety or reducing to a misdemeanor, an appeal was not required and was likely less preferable to a motion to amend the information. See Goecke, 457 Mich. at 458-459 (holding that the prosecution's failure to appeal a district court decision when the district court binds over lesser charges does not foreclose the prosecution's ability to move to amend the information to include the original charges).
Finally, following bind over on the lesser charges, the prosecution could have challenged the district court's suppression order before the circuit court under MCR 6.110(D)(2) and moved to amend the information. See Goecke, 457 Mich. at 455-463; see also MCL 767.76 (providing that the court may amend an information at any time before, during, or after trial). Unlike an application for leave to appeal or a motion for reconsideration, this process would limit the court's discretion to deny a request to challenge the suppression order or supplement the bill of information. Ultimately, this would have allowed the prosecution to revisit the suppression order, call additional witnesses if necessary, and amend the information to include the original charges, without pinballing from district court to circuit court and back again.
Under MCR 6.110(D)(2)(a)-(c), either party may challenge the district court's suppression order before the circuit court. In its relevant parts, 6.110(D)(2) provides:
If, during the preliminary examination, the court determines that evidence being offered is excludable, it must, on motion or objection, exclude the evidence. If, however, there has been a preliminary showing that the evidence is admissible, the court need not hold a separate evidentiary hearing on the question of whether the evidence should be excluded. The decision to admit or exclude evidence, with or without an evidentiary hearing, does not preclude a party from moving for and obtaining a determination of the question in the trial court on the basis of
(a) a prior evidentiary hearing, or
(b) a prior evidentiary hearing supplemented with a hearing before the trial court, or
(c) if there was no prior evidentiary hearing, a new evidentiary hearing.
Essentially, MCR 6.110(D)(2) allows the prosecution to raise the issue of exclusion before the circuit court. See id. In such a hearing, the prosecution could introduce new evidence, such as the canine officer's testimony, and rely on the testimony from the prior hearing-the preliminary examination. See id.
If, after challenging the suppression order under MCR 6.110(D)(2), the circuit court found that the fruits of the search were admissible, the prosecution could file a Goecke motion to amend the information to add the original charges. Goecke, 457 Mich. at 455-463. Under Goecke, the prosecution may move to amend the information to include additional charges if the evidence presented at the preliminary examination provided probable cause for those charges and the amendment does not prejudice the defense. See id. Here, the prosecution had already presented evidence regarding the fruits of the searches of both the vehicle and the residence. Therefore, assuming that the circuit court validated the searches after a hearing under MCR 6.110(D)(2), the prosecution could have amended the information to include the original charges without a second preliminary examination.
This process would have allowed the prosecution to reach the same outcome as the voluntary dismissal and refiling of charges with three added benefits over the process used by the prosecution in this case. First, these are normalized processes that the court rules already contemplate. Second, it saves court resources. Under MCR 6.110(D)(2), the district court and circuit court each address the validity of the stop once. Under the procedure the prosecution used here, the district court addressed suppression at the first exam, then the defense moved to quash on that basis in the circuit court before the voluntary dismissal, then the district court addressed it at the second exam, and now the circuit court will undoubtedly address it during a motion to suppress when the refiled case continues. Instead of one preliminary exam and one circuit court case, the prosecution's method required two preliminary exams and two circuit court cases. It was an inefficient use of court resources at a time when they are increasingly precious.
Finally, in addition to the efficiency gains of this process, challenging the suppression under MCR 6.110(D)(2) and moving to amend under Goecke, as opposed to dismissing and refiling, does not risk undermining public confidence in the prosecution in the same way. Here, instead of responding to the defense's motion to quash, the prosecution simply dismissed the case, hit the reset button, and started over in the district court. To a cynic-or even to a lay person- moving to dismiss charges and refiling with new testimony that shores up a prosecutor's case may look like gamesmanship. The defense raised precisely this concern when the prosecution sought to reopen proofs at the end of the first preliminary exam. These concerns are likely amplified by the prosecution's choice to use a process that is not prohibited, but not explicitly contemplated, by the court rules. By comparison, moving for an evidentiary hearing and order admitting excluded evidence under MCR 6.110(D)(2), and moving to amend an information under Goecke, are normalized processes that are explicitly contemplated by the court rules and established precedent.
Because of the overlapping issues, the prosecution's response to the motion to quash provided the ideal opportunity to move for an evidentiary hearing under MCR 6.110(D)(2) and move to amend under Goecke.
III. CONCLUSION
I concur in the result because there was no legal obstacle to the prosecution's voluntary dismissal and refiling of charges. Nevertheless, three alternatives were available that were more efficient and presented lower risk to the public's confidence in the prosecution. I concur in remanding to the circuit court for further proceedings.