Oakland CC: 2015-255034-FH
Bridget
M. McCormack, Chief Justice, David F. Viviano, Chief Justice
Pro Tem, Stephen J. Markman, Brian K. Zahra, Richard H.
Bernstein, Elizabeth T. Clement, Megan K. Cavanagh, Justices.
ORDER
On
order of the Court, the application for leave to appeal the
November 29, 2018 judgment of the Court of Appeals is
considered and, pursuant to MCR 7.305(H)(1), in lieu of
granting leave to appeal, we VACATE Part II of the Court of
Appeals judgment addressing the defendants motion to
suppress, and we REMAND this case to the Oakland Circuit
Court for further proceedings. The circuit court shall
conduct an evidentiary hearing to determine: (1) whether, at
the time that Officer Proulx initially searched the property
at 695 Livernois, he had been advised that he had consent to
search the property; (2) if so, whether Treasury employee
Jill Robinson had actual authority to consent to that search;
and (3) if not, whether Officer Proulx reasonably relied on
apparent authority for consent to search, i.e., whether it
was reasonable for him to rely on the apparent consent
without making any effort to verify the authority to consent,
in light of the citation posted on the front door. The
circuit court shall then decide whether to grant the
defendant a new trial. In all other respects, leave to appeal
is DENIED, because we are not persuaded that the remaining
question presented should be reviewed by this Court.
We do
not retain jurisdiction.
Zahra,
J. (dissenting).
I
respectfully dissent from the order remanding this case to
the trial court for an evidentiary hearing to determine
whether, at the time that Officer Proulx initially searched
the property at 695 Livernois, he had been advised that he
had consent to search the property; whether Department of
Treasury employee Jill Robinson had actual authority to
consent to that search; or whether Officer Proulx reasonably
relied on Robinsons apparent authority for consent to
search. Defendant did not preserve these issues below and has
not properly presented these issues to this Court. Instead,
defendant raises only two issues in this Court: whether the
Court of Appeals misapplied the doctrine of "inevitable
discovery" in rejecting defendants argument that the
search of his house violated the Fourth Amendment; and
whether defendant was denied his right to an impartial jury,
or to the effective assistance of counsel, when a juror
attempted to engage a court clerk in a conversation about the
case, but no further inquiry was made into (a) what was said,
(b) whether the juror was biased, or (c) whether there was
further communication with the jury at large. Because the
questions presented on remand were not preserved and were
wholly abandoned by defendant, I would deny the application
for leave to appeal and offer defendant no avenue for relief.
Page 890
In the
trial court, defendant moved to suppress incriminating
evidence recovered from the warrantless entry into the
Livernois home under the Fourth Amendment. His motion,
however, focused on the validity of the search warrant and
the veracity of the assertions within Detective Matthew
Goebels affidavit supporting the warrant rather than Officer
Proulxs initial warrantless entry. Defendant alerted the
trial court that the county did not own the Livernois home
and alleged that "Ms. Robinson did not have authority to
grant officers or county employees permission to enter the
premises/home." But he made this assertion in the
context of requesting an evidentiary hearing pursuant to
Franks v. Delaware ,[1] arguing that the
allegations in Detective Goebels affidavit were materially
false. Defendant did not ask for a hearing on whether Officer
Proulx or Detective Goebel had valid consent to search, nor
did he present any argument on the doctrine of consent. In
the Court of Appeals, defendant again stated that Robinson
had no authority to consent to the search, but just as he
failed to do before this Court, he did not argue the relevant
body of law on the validity of Robinsons consent.
This
Court has recognized that
[i]t is not enough for an appellant in his brief simply to
announce a position or assert an error and then leave it up
to this Court to discover and rationalize the basis for his
claims, or unravel and elaborate for him his arguments, and
then search for authority either to sustain or reject his
position.[2]
As the
appellant, defendant was required to preserve his issues
adequately and make at least a threshold showing of error
entitling him to relief.[3] His failure to do so constitutes
abandonment of those issues on appeal.[4] This Court correctly
denies defendant relief on the issues he raises, but on its
own initiative also grants defendant relief that he has not
requested. Because defendant has failed to properly raise and
present the dispositive arguments adopted by the majority ...