Opinion
Docket Nos. 99852-99856.
Decided June 19, 1989. Leave to appeal applied for.
Frank J. Kelley, Attorney General, Louis J. Caruso, Solicitor General, Joseph S. Filip, Prosecuting Attorney, and Jerrold Schrotenboer, Chief Appellate Attorney, for the people.
Jerome A. Susskind, for defendants Perlos, Bentley and Schomer.
John M. Sims, for defendant Brown.
John P. Kobrin, Jr., for defendant Miller.
ON REHEARING
Pursuant to our order of December 8, 1988, granting rehearing of People v Perlos, 170 Mich. App. 75; 428 N.W.2d 685 (1988), we have addressed the limited issue of whether these five consolidated cases should be remanded to the circuit and district courts. We answer in the affirmative.
Although our decision was grounded on both state and federal constitutional provisions, we find the federal constitutional basis controlling for purposes of the applicability of federal precedent. Michigan v Long, 463 U.S. 1032; 103 S Ct 3469; 77 L Ed 2d 1201 (1983). The people should therefore be afforded the opportunity to establish whether the blood-alcohol test results are admissible under the "independent source doctrine" held viable in Murray v United States, 487 US ___; 108 S Ct 2529; 101 L Ed 2d 472 (1988). We did not have the benefit of that precedent in rejecting the prosecution's independent source doctrine claims when this case was briefed, argued and decided. To the extent we held that it would be impossible for the prosecution to establish that the evidence has a source independent of constitutional illegality, we have been overruled by the United States Supreme Court's opinion in Murray v United States, supra.
The defendants have argued that we are not bound by a plurality decision of the United States Supreme Court. We find that we are so bound. Negri v Slotkin, 397 Mich. 105, 110; 244 N.W.2d 98 (1976).
Defendants also argue that our opinion striking MCL 257.625a(9); MSA 9.2325(1)(9) as unconstitutional strikes also the last sentence of that section regarding medical entity immunity. Our opinion was not based on any interpretation of, and does not implicate, the validity of the last sentence of § (9).
People v England, 176 Mich. App. 334; 438 N.W.2d 908 (1989), was released by another panel of this Court and directly conflicts with our decision in this case. We have certified a conflict to the Supreme Court. Our decision, however, is law of the case sub judice.
We adopt the remedy employed by the majority in Murray v United States, supra, and remand these cases to the circuit court with instructions that it remand to the district courts 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 said evidence in accordance with Murray v United States, supra.
Remanded. We do not retain jurisdiction.