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People v. Bruce

Supreme Court of Michigan

July 25, 2019

PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellant,
v.
TERENCE MITCHELL BRUCE, Defendant-Appellee PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellant,

Page 189

         

          Chief Justice: Bridget M. McCormack. Chief Justice Pro Tem: David F. Viviano. Justices: Stephen J. Markman, Brian K. Zahra, Richard H. Bernstein, Elizabeth T. Clement, Megan K. Cavanagh. MCCORMACK, C.J. (dissenting). VIVIANO, J. (dissenting). CLEMENT, J. (dissenting).

         OPINION

Page 190

         [504 Mich. 559] BEFORE THE ENTIRE BENCH

          Cavanagh, J.

          In these consolidated cases we consider whether defendants, who were federal border patrol agents operating as part of a joint task force enforcing Michigan law, are public officers for purposes of the common-law offense of misconduct in office. The crux of this question is how to categorize their offices— solely as border patrol agents or as federal agent task force members enforcing Michigan law. We hold that the categorization depends on the duties exercised by [504 Mich. 560] defendants and the color of office under which defendants acted. In these cases, because defendants exercised duties of enforcement of Michigan law and acted under authority granted to them by Michigan statute, they acted as public officers. Accordingly, we reverse the Court of Appeals and remand to that Court for consideration of defendants' remaining issues.

          I. FACTS AND PROCEDURAL HISTORY

          Defendants, Terence Bruce and Stanley Nicholson, were federal border patrol agents assigned to a Hometown Security Team (HST) task force operating in Jackson County in December 2014. The HST is a " criminal intervention team" assigned mostly to freeways and that focuses on drugs and firearms. At the time, the HST consisted of Michigan State Police troopers, border patrol agents, and other officers.

          Defendants were " embedded" with the HST, meaning that they did not have other duty assignments; they worked with the HST every shift. They took orders from superiors in the HST, and defendant Nicholson testified that he considered himself to have " peace officer status," that he adopted the authority of the HST, and that he participated in the law enforcement duties the HST performed. If the HST executed a search warrant, defendants took part.

          On the evening of December 23, 2014, an HST patrol unit consisting of a Michigan State Police trooper and a border patrol agent executed a traffic stop against Benjamin Scott. The trooper searched Scott's car and found marijuana trimmings and proof of his residency. The investigation then incorporated another task force, the Jackson Narcotics Enforcement Team (JNET). HST and JNET obtained a search warrant for [504 Mich. 561] two residences Scott was renting and held a joint briefing to prepare to execute the warrant.

          Defendants attended the briefing, which addressed team member assignments for the raid and contingencies such as where

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to retreat if shots were fired and which hospital to use if necessary. Defendants were assigned to ensure perimeter security during the initial entry and then to help search the homes and remove confiscated evidence. HST and JNET made entry and spent most of the evening and early morning disassembling and removing an elaborate marijuana-growing operation from the basements of the homes. The task forces seized grow lights, ballasts, netting, and marijuana plants. A careful tabulation was kept of every item taken that noted whether it was evidence of a crime or subject to forfeiture as proceeds of a crime. But defendants took additional property not included on the tabulation.

          Defendant Nicholson took an antique thermometer and barometer device. He said that it was rusty and dirty, and he insisted that " it really was junk" when he removed it but that he intended to clean it up. According to defendant Nicholson, he took the device to his workshop where he tried to clean the lens with a rotary tool, but he accidentally burrowed through, making the device useless. After ruining the device, he discarded it and " gave it no other thought, it was trash." But it had not been trash to Scott. The device had been given to Scott by his grandfather, who had received it from his father. It was a family heirloom.

          Defendant Bruce took a wheeled stool with a leather seat home with him and kept it until he was asked about it by the HST team leader. When asked, Bruce admitted that he took the stool. He then returned it to the Michigan State Police post in Jackson.

         [504 Mich. 562] Defendants were charged with common-law misconduct in office as well as larceny in a building. Each moved for pretrial dismissal and midtrial directed verdicts, arguing that they were not public officers for purposes of the misconduct-in-office offense. The trial court denied the motions for pretrial dismissal and midtrial directed verdicts in both cases. Ultimately the jury convicted defendants of misconduct in office but acquitted them of larceny in a building.

          Defendants appealed and challenged their convictions on multiple grounds, including that they were not public officers for purposes of the misconduct-in-office offense. The Court of Appeals agreed that defendants were not public officers and vacated the convictions. People v Bruce, unpublished per curiam opinion of the Court of Appeals, issued October 5, 2017 (Docket Nos. 331232 and 331233). The prosecution sought leave to appeal in this Court, and we granted the application to address " whether the defendant federal border patrol agents were 'public officers' for purposes of the common-law crime of misconduct in office when they assisted— as members of a law enforcement task force that included Michigan State Police and Michigan motor carrier officers— in the execution of a search warrant." People v Bruce, 501 Mich. 1026, 1026; 908 N.W.2d 301 (2018).

          II. STANDARD OF REVIEW

          Whether defendants are public officers is a question of law that we review de novo. People v Coutu, 459 Mich. 348, 353; 589 N.W.2d 458 (1999). Interpretation and application of statutes are also questions of law that we review de novo. Id.

          III. ANALYSIS

          Often, appellate consideration of the common-law offense of misconduct in office has been a vertical [504 Mich. 563] inquiry into whether a defendant's status was more than that of an " employee," to the point of becoming a " public officer." Defendants argue that although they were executing a search warrant as HST team members,

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their status as border patrol agents makes this a horizontal problem that allows them to escape sideways from the common-law responsibilities at issue. We hold that the proper perspective of defendants' offices is determined by the duties they exercised and the color of office under which they acted. From that perspective, we see that defendants were public officers.

          The idea that people who wield the power of the state are required to do so responsibly is not new. More than 20 years ago we observed that the common law describes the offense of misconduct in office as " 'corrupt behavior by an officer in the exercise of the duties of his office or while acting under color of his office.'" Coutu, 459 Mich. at 354, quoting Perkins & Boyce, Criminal Law (3d ed), p 543. Public officers had been held accountable under the offense long before,[1] and public officers in Michigan have continued to be held accountable under the offense since.[2]

          In Coutu, 459 Mich. 348; 589 N.W.2d 458, we considered the question whether a deputy sheriff is a public officer. There, we built on the foundation of People v Freedland, 308 Mich. 449; 14 N.W.2d 62 (1944), in constructing our understanding of who qualifies as an officer. Freedland had considered many authorities, including [504 Mich. 564] State v Hawkins, 79 Mont. 506; 257 P. 411 (1927), which defined " public office of a civil nature" for purposes of Montana's constitutional prohibition on legislators holding multiple positions. The Hawkins court concluded that " five elements are indispensable" in any such office:

(1) It must be created by the Constitution or by the Legislature or created by a municipality or other body through authority conferred by the Legislature; (2) it must possess a delegation of a portion of the sovereign power of government, to be exercised for the benefit of the public; (3) the powers conferred, and the duties to be discharged, must be defined, directly or impliedly, by the Legislature or through legislative authority; (4) the duties must be performed independently and without control of a superior power, other than the law, unless they be those of an inferior or subordinate office, created or authorized by the Legislature, and by it placed under the general control of a superior officer or body; (5) it must have some permanency and continuity, and not be only temporary or occasional. [Id. ]

Freedland quoted these five factors, among other considerations. Freedland, 308 Mich. at 457-458. Coutu noted these same factors and also added that oath and bond requirements are " of assistance" in determining whether a defendant is a public officer. Coutu, 459 Mich. at 355 . The parties in this matter agree that Coutu identifies the relevant factors.[3]

Page 193

[504 Mich. 565] The central problem of this case is how to categorize defendants for purposes of the Coutu analysis. Should we view defendants solely as border patrol agents or as federal agent HST members enforcing Michigan law? Again, defendants were charged with " 'corrupt behavior by an officer in the exercise of the duties of his office or while acting under color of his office.'" Id. at 354, quoting Perkins & Boyce, p 543. The relevant office to analyze must be determined by which duties defendants [504 Mich. 566] were exercising and the color of office under which defendants were acting.

          In some ways the categorization problem here is similar to that in People v Perkins, 468 Mich. 448; 662 N.W.2d 727 (2003). In Perkins, the defendant was a deputy sheriff who was prosecuted for acts arising from his sexual relationship with a 16-year-old girl. Id. at 450 . The charged offenses included misconduct in office. Id. at 449 . By then we had already decided that a deputy sheriff was a public officer for purposes of the offense. Id. at 457, citing Coutu, 459 Mich. at 357-358. But in Perkins we held that because there was " no evidence correlating that conduct with defendant's public office," there was no " nexus between defendant's alleged conduct and defendant's status as a sheriff's deputy." Id. at 457-458 . Said another way, although the defendant was a public officer in another context, he was not acting under the color of that office when he allegedly committed the offense.

          Defendants have not argued that they were off duty from the HST or at Scott's home solely as border patrol agents. Nor

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have defendants argued that they were enforcing a federal statute or acting under their power as border patrol agents. There is no dispute that defendants were at Scott's home as federal agent HST members authorized to assist in the execution of the search warrant under MCL 764.15d. Under this section, under certain circumstances, federal law enforcement officers may " enforce state law to the same extent as a state or local officer," MCL 764.15d(1), and enjoy all the " privileges and immunities of a peace officer of this state," MCL 764.15d(2).[4] Defendants were functioning as federal agent HST members enforcing [504 Mich. 567] Michigan law, and that is the relevant perspective under Coutu . See Bruce (Borrello, J., dissenting), unpub op, Id. *8.

         [504 Mich. 568]Application of the Coutu factors shows that defendants, as federal agent members of the HST enforcing Michigan law, are public officers for purposes of the common-law offense of misconduct in office.[5] The first factor is satisfied by MCL 764.15d. As described earlier, the Legislature provided for positions, such as those defendants held with the HST, in which federal law enforcement officers " may enforce state law to the same extent as a state or local officer . . . ." MCL 764.15d(1). Federal law enforcement officers are vested with this authority if they are authorized under federal law with arrest powers and to carry a firearm, MCL 764.15d(1)(a) and (b), and when they are participating in a joint investigation with a state or local law enforcement agency or acting pursuant to the request of local law enforcement, MCL 764.15d(1)(c)(iii) and (iv). Defendants acknowledged at oral argument that they were operating under the authority of MCL 764.15d in assisting

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with the execution of the warrant. But for this statute, there would be no federal law enforcement officers who have authority to participate in these types of investigations. The Legislature created their positions, which authorized them to be in Scott's home.[6]

         [504 Mich. 569] Analysis of the second factor is similar to that of Coutu 's analysis of deputy sheriffs because defendants were empowered to " enforce state law to the same extent as a state or local officer . . . ." MCL 764.15d(1). The second factor is satisfied because police officers discharging their duties act for the state in its sovereign capacity, Coutu, 459 Mich. at 355, citing Tzatzken v Detroit, 226 Mich. 603, 608; 198 N.W. 214 (1924), so necessarily defendants, who were empowered to " enforce state law to the same extent as a state or local officer," MCL 764.15d(1), possessed power delegated by the Legislature that was exercised for the benefit of the public.

          The third factor is also satisfied. Again, in Coutu we stated that " 'the powers conferred, and the duties to be discharged, must be defined, directly or impliedly, by the legislature or through legislative authority[.]'" Coutu, 459 Mich. at 354, quoting Freedland, 308 Mich. at 458. Authorized officers " may enforce state law to the same extent as a state or local officer," MCL 764.15d(1), and they are granted the " privileges and [504 Mich. 570] immunities of a peace officer of this state," MCL 764.15d(2). That defendants were vested with broad " powers" is obvious enough. MCL 764.15d also directly or impliedly describes their " duties." A " duty" is commonly understood to be " something that one is expected or required to do by moral or legal obligation." Random House Webster's College Dictionary (2001). In Coutu, we held that this factor was satisfied because " the Legislature defined in part the powers and duties of deputy sheriffs," citing MCL 51.75, MCL 51.76(2), and MCL 51.221. Coutu, 459 Mich. at 355 . To the extent that those statutes impose obligations, they impose them on the sheriff and the department, but not on any particular deputy.[7] Additionally, MCL 51.221

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states that a deputy " may serve or execute civil or criminal process issued by a court of this state, and have and [504 Mich. 571] exercise all the powers and duties of constables." (Emphasis added.) In Coutu, we held that a deputy's duties were the obligations of the sheriff, MCL 51.75, the obligations of the sheriff's department, MCL 51.76(2), and other duties a deputy may have, MCL 51.221. Coutu, 459 Mich. at 355. We see little difference in this case, in which the duties of defendants were the obligations of the HST, MCL 764.15d(1)(c)(iii) and (iv), and other duties authorized officers may have, MCL 764.15d(1) (" A federal law enforcement officer may enforce state law to the same extent as a state or local officer . . . ." ).[8]

          The fourth factor is also comparable to Coutu . There, we reasoned that although deputy sheriffs do not operate without a superior control other than the law, they are under the control of the sheriff, a " superior officer." Coutu, 459 Mich. at 355. In this case, the situation is much the same. Defendants were operating under MCL 764.15d(1)(c)(iii) and (iv), so they were empowered to act only insofar as they were participating [504 Mich. 572] in a joint investigation or acting at the request of state officers. They were under the general control of the HST. Defendant Nicholson testified that border patrol agents embedded in the HST deferred to the knowledge and expertise of the Michigan State Police troopers, followed their lead, and took orders from them.[9]

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          The permanence requirement of the fifth factor is satisfied from multiple perspectives. First, the statutory delegation of the state's police power to qualifying federal agents used by defendants has been codified since 1999. 1999 PA 64. There is nothing " temporary or occasional" about the delegation. We think that almost 20 years of delegated authority easily crosses the threshold of " some permanency and continuity." Second, the HST is an ongoing invocation of the delegated authority. The record does not reveal precisely when the HST was established, but the team leader, a Michigan State Police sergeant, had led the team continuously from December 2012 until this trial in September 2015. Therefore, we know that the team was in operation for nearly three years. Third, defendants were on long-term assignments, being " embedded" with the HST. Defendants did not have any other duty assignments. They worked with the HST every shift. Accordingly, there was [504 Mich. 573] permanency and continuity to defendants' assignment to the HST.[10]

          Lastly, we note that whether a defendant has taken an oath is " of assistance" in this determination.[11] Coutu, 459 Mich. at 355. The delegation of the state's [504 Mich. 574] police power used by these defendants, MCL 764.15d, is not available to everyone. Rather, the delegation may only be used by a " federal law enforcement

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officer." MCL 764.15d(1). Because federal law enforcement officers take oaths to defend the federal Constitution, MCL 764.15d(1) contemplates an oath as well. At any rate, this factor is not dispositive. Under Coutu, defendants are public officers.

          The Court of Appeals majority concluded that the relevant perspective was that defendants were mere border patrol agents and then observed that the authority that allowed defendants to enforce Michigan law had no bearing on the authority that created the border patrol. Bruce, unpub op, Id. *7. This same argument is offered by defendants, who assert that the position of federal border patrol agent was created by Congress, not the Michigan Constitution or Michigan Legislature. For further support, defendants point out that MCL 15.181(e) defines " public officer" in a way that does not allow for creation of such a public office by Congress. These arguments all err in that they focus on defendants' status as mere border patrol agents rather than on their status as federal agent HST members enforcing Michigan law.[12] If defendants had been operating only as federal border patrol agents, the body which created that position would be [504 Mich. 575] relevant. But it was because ...


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