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 defendant's 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 Robinson's 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 defendant's 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.
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
Goebel's affidavit supporting the warrant rather than
Officer Proulx's 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 Goebel's 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 Robinson's
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 or any other jurisprudentially significant
issues ripe for resolution, I would deny him the relief the
majority gives him today.
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Notes:
[1] Franks v Delaware, 438 U.S.
154 (1978).
[2]
Mitcham v Detroit, 355 Mich.
182, 203 (1959).