PEOPLE OF MI V MICHAEL LEMPICKI
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
April 23, 2002
Plaintiff-Appellant,
v
No. 233952
Wayne Circuit Court
LC No. 00-007640
MICHAEL LEMPICKI,
Defendant-Appellee.
Before: O’Connell, P.J., and White and Cooper, JJ.
PER CURIAM.
The prosecutor appeals as of right from the trial court’s March 29, 2001, order of
dismissal, which followed the trial court’s partial grant of defendant’s motion to suppress
evidence. We reverse and remand.
Defendant was charged with third-degree criminal sexual conduct, MCL 750.520d(1)(a)
(sexual penetration with person at least 13 years of age and under 16 years of age) arising from
an incident that allegedly took place between August 15 and August 31, 1999. During the June
21, 2000, preliminary examination, the fourteen-year-old complainant testified that after talking
to defendant near a playscape in a park in the city of Wayne, he and defendant went into a nearby
public restroom. The complainant was unable to recall the exact date of the incident. According
to the complainant, he pulled down his pants, and defendant performed fellatio on him. After
defendant told the complainant that it was “[the complainant’s] turn,” the complainant walked
out of the restroom.
On September 1, 2000, defendant moved to suppress statements he made at the time of
his arrest and shortly after, as well as the complainant’s testimony. Specifically, defendant
contended that the statements and the complainant’s testimony were inadmissible because they
were the fruit of an illegal arrest, and that they were given in violation of Miranda v Arizona, 384
US 436; 86 S Ct 1602; 16 L Ed 2d 694 (1966). In his brief in support of the motion to suppress,
defendant argued that the police did not have probable cause to arrest him, that his statement at
the police station was not given voluntarily, and that he did not knowingly, intelligently, and
voluntarily waive his Miranda rights.
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The trial court conducted a Walker1 hearing on March 29, 2001. At the hearing, the
prosecutor and defendant stipulated, on the basis of a psychological report2 regarding
defendant’s competency to waive his Miranda rights, that defendant was unable to knowingly,
voluntarily, and intelligently waive these rights. As a result, the parties further agreed that
defendant’s statement to the police at the police station following his arrest was inadmissible at
trial. Therefore, the key issues at the suppression hearing focused on the admissibility of
defendant’s statement to the police at the time of his arrest and the complainant’s testimony.
During the suppression hearing, city of Wayne Police Officer Sean Randolph testified
that on October 14, 1999, he and another police officer, Officer Buckley,3 visited Franklin
Middle School to investigate a burglary alarm. According to Randolph, an unidentified4 young
boy approached Officer Buckley to report that he was talking to defendant near the playscape in
a nearby park when defendant observed the police cars arrive at the school. According to the
young boy, defendant said, “there’s the police, I have to go,” and ran toward woods south of the
park. An unidentified young girl present in the park showed the police a hole in the fence that
defendant ran through to exit the park.
After the officers entered the woods to investigate, they observed defendant standing
about thirty feet away, looking at them. When defendant saw the police, he began to run away.
Although the police officers yelled to defendant to stop at least three or four times, he continued
to run away. A chase ensued, after which defendant was stopped on the other side of the woods
by another police officer and his canine. Defendant was then arrested for violating a city of
Wayne loitering ordinance.
Sergeant Kevin Karson also testified at the suppression hearing. He indicated that he
interviewed defendant at the police station following his arrest. According to Karson, defendant
had made “disturbing statements” to Buckley and Randolph when he was arrested. Specifically,
defendant told the officers as they tried to subdue him “please don’t hurt me, please don’t hurt
me. I’d be very mad if I was with somebody who hurt, a, who hurt a kid too. But please don’t
hurt me. I deserve to die in prison.” Before defendant made these statements, the police were
unaware of any sexual misconduct occurring at the school.
1
People v Walker (On Rehearing), 374 Mich 331; 132 NW2d 87 (1965).
2
Marilyn K. Gerwolls, Ph.D., prepared the report. In the report, Dr. Gerwolls noted that
defendant was diagnosed with autism at the age of five, and that he suffered from Tourette
Syndrome. Dr. Gerwolls further indicated that defendant’s adaptive skills fell significantly
below cognitive levels, and defendant’s intellectual testing placed him at a mildly impaired range
of functioning. According to the report, defendant’s word recognition is at a first-grade level,
and defendant is suggestible and vulnerable to manipulation by others. In sum, Dr. Gerwolls
concluded that defendant’s “limited cognitive abilities and lack of socially adaptive behavior
make it unlikely that he would be able to grasp the import of the Miranda warnings.” [Emphasis
supplied.]
3
Officer Buckley did not testify at the suppression hearing, but his report detailing the incident
on October 14, 1999, was admitted as an exhibit.
4
Although Randolph did not state the name of the young boy at the suppression hearing, the
name of the boy, as well as a later female witness, were included in Buckley’s report.
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Karson testified that he advised defendant of his Miranda rights, and that he asked
defendant if he was under the influence of drugs or alcohol. In response to defense counsel’s
queries during cross-examination, Karson stated that from a layman’s perspective, it appeared to
him that defendant may have had “issues.” Specifically, Karson recalled that defendant rocked
back and forth during the interview, and that it appeared that defendant “had problems” but he
was unaware of the nature of these problems. Karson readily conceded that he did not attempt to
obtain a lawyer for defendant, or assess the nature of his “problems,” but interviewed him as he
would any other individual. Specifically, Karson testified:
I treated [defendant] as I would any other defendant that was in custody
[that] I was interviewing. I read him his Miranda rights. I asked him if he could
read and write and he stated he could. And we went over the Miranda Rights[,]
asking any questions.
As a result of his questioning of defendant, Karson ascertained the identity of the
complainant. At the close of the suppression hearing, the trial court, in a lengthy bench ruling,
concluded that defendant’s arrest was unlawful because the police did not have grounds to arrest
defendant for a violation of the loitering ordinance, and that the police engaged in misconduct by
interviewing defendant after observing his mental limitations. However, the trial court
concluded that defendant’s initial statement to the police at the time of his arrest was voluntarily
given, and therefore admissible. Defendant then moved to dismiss the case against him, which
the trial court granted. The prosecutor now appeals as of right.
On appeal, the prosecutor contends that the trial court erred in concluding that the police
did not have probable cause to arrest defendant. We agree.
The trial court's findings of fact in a suppression hearing are reviewed for clear error.
People v Brzezinski, 243 Mich App 431, 433; 622 NW2d 528 (2000). “To the extent that a trial
court’s ruling on a motion to suppress involves an interpretation of the law or the application of a
constitutional standard to uncontested facts, [this Court’s] review is de novo.” People v
Attebury, 463 Mich 662, 668; 624 NW2d 912 (2001).
It is undisputed that the police did not secure a warrant to arrest defendant on October 14,
1999. However, “the [United States] Constitution permits an officer to arrest a suspect without a
warrant if there is probable cause to believe that the suspect has committed or is committing an
offense.” Michigan v DeFillippo, 443 US 31, 36; 99 S Ct 2627; 61 L Ed 2d 343 (1979); People
v Shabaz, 424 Mich 42, 58; 378 NW2d 451 (1985). In the instant case, the police officers had
probable cause sufficient to support a warrantless arrest of defendant if “at the moment the arrest
was made . . . the facts and circumstances within their knowledge and of which they had
reasonably trustworthy information were sufficient to warrant a prudent man in believing” that
defendant violated the applicable ordinance. Hunter v Bryant, 502 US 224, 228; 112 S Ct 534;
116 L Ed 2d 589 (1991); see also Adams v Williams, 407 US 143, 148; 92 S Ct 1921; 32 L Ed 2d
612 (1972).
Probable cause is not easily defined. See Ornelas v United States, 517 US
690, 695; 116 S Ct 1657; 134 L Ed 2d 911 (1996); People v Russo, 439 Mich 584,
608; 487 NW2d 698 (1992). It ‘is a fluid concept –turning on the assessment of
probabilities in particular factual contexts – not readily, or even usefully, reduced
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to a neat set of legal rules.’ Illinois v Gates, 462 US 213, 232; 103 S Ct 2317; 76
L Ed 2d 527 (1983). Thus, the totality of the circumstances must be considered.
[People v Nunez, 242 Mich App 610, 620; 619 NW2d 550 (2000) (O’Connell, J.,
concurring).]
In the instant case, section 656.02 of the city of Wayne ordinance provides:
(a) No person shall loiter or prowl in any public or private place at a time, in a
manner or under circumstances which warrant alarm for the safety of persons or
security of property in the surrounding area.
(b) The following circumstances shall be considered in determining whether such
alarm is warranted:
(1) The flight of a person upon the appearance of a police officer;
(2) Attempted concealment by a person upon the appearance of a police officer;
or
(3) The systematic checking by a person o[f] doors, windows or other means of
access to buildings, houses or vehicles.
(c) Unless flight by the actor or other circumstances make it impractical, a police
officer shall, prior to any arrest for an offense under this section, afford the actor
an opportunity to dispel any alarm which would otherwise be warranted, by
requesting him or her to identify himself or herself and explain his or her presence
and conduct. No person shall be convicted of an offense under this section if the
police officer did not comply with the preceding criteria and request for
information, or if it appears at trial that the explanation given by the actor was
true, and if believed by the police officer at the time, would have dispelled the
alarm.
Subsection (d)(1) of the ordinance defines “loitering” as “lingering, hanging around,
delaying, sauntering and moving slowly about, where such conduct is not due to physical defects
or conditions.”
After a thorough review of the record, we disagree with the trial court’s assessment that
the police did not have probable cause to believe that defendant had committed, or was
committing, an offense at the time of his arrest. Officer Randolph testified at length about the
circumstances surrounding defendant’s arrest. He indicated that a young boy present in the park
told Officer Buckley that defendant was standing in the park when the police cars arrived, and
that on their arrival defendant fled. After a young girl pointed out the direction in which
defendant ran, the police entered the woods and saw defendant standing there. When defendant
saw the police, he continued to flee in spite of repeated shouted requests by the police for him to
stop. Defendant was eventually arrested at the other side of the woods after he was apprehended
by another police officer and his canine.
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To the extent that the trial court concluded that insufficient evidence was presented to
suggest that defendant engaged in any of the conduct prohibited by the loitering ordinance,
specifically “lingering, hanging around, delaying, sauntering, and moving slowly about,” the
record is clear that the young boy present in the park informed the officers that defendant was
talking to him in the park when the police arrived at the school. The witness’ information in this
regard may properly support the police officer’s determination that probable cause existed to
believe that defendant was hanging around as contemplated by the ordinance. See Chambers v
Maroney, 399 US 42, 44-46; 90 S Ct 1975; 26 L Ed 2d 419 (1970) (where police officers spoke
with teenagers who gave description of suspects of crime and getaway car, police had probable
cause to arrest the defendant). Further, the police themselves saw defendant standing in the
woods, and then flee upon seeing them.
During the suppression hearing, Officer Randolph testified that the decision to arrest
defendant for violation of the ordinance was based on defendant’s fleeing from the police.
Rejecting this testimony, the trial court concluded that mere flight was not sufficient to support a
finding of probable cause to believe that the ordinance was violated. We are not in agreement
with the trial court’s conclusion. Officer Randolph’s subjective belief with regard to whether
probable cause existed is of little import. Specifically, our Supreme Court has instructed that the
probable cause inquiry is “objective.” People v Cipriano, 431 Mich 315, 342; 429 NW2d 781
(1988).
An arresting officer’s subjective characterization of the circumstances
surrounding an arrest does not determine its legality. Rather, probable cause to
justify an arrest has always been examined under a standard of objective
reasonableness without regard to the underlying intent or motivation of the
officers involved. [Id.]
Because the surrounding facts and circumstances were sufficient to warrant a prudent
individual to believe that defendant had committed an offense, the police had probable cause to
arrest defendant. Further, to the extent that the record facts may reflect that the arrest did not
adhere to MCL 764.15(1)(a), which allows a peace officer to arrest an individual without a
warrant for an ordinance violation if it is committed in the peace officer’s presence, we note that
failure to satisfy the statute does not require exclusion of the evidence in this case. People v
Hamilton, 465 Mich 526, 532-533; 638 NW2d 92 (2002). Because the police had probable cause
to arrest defendant, his arrest did not violate the Fourth Amendment, and the exclusionary rule is
not applicable. Id. at 533.
The prosecutor next asserts that the trial court erred in suppressing the complainant’s
testimony. We agree.
In essence, the prosecutor argues that even if defendant’s arrest violated Fourth
Amendment protections, the complainant’s testimony need not be excluded, given that it was
“sufficiently attenuated” from the illegal arrest. However, we have concluded that defendant’s
warrantless arrest did not violate the Fourth Amendment because it was supported by probable
cause. In the alternative, the prosecutor notes that pursuant to People v Kusowski, 403 Mich 653;
272 NW2d 503 (1978), a defendant’s inability to knowingly, voluntarily and intelligently waive
his Miranda rights does not necessitate exclusion of testimonial evidence from a third party
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discovered as a result of the defendant’s confession. See also People v Melotik, 221 Mich App
190, 199; 561 NW2d 453 (1997).
In Kusowski, supra, the defendant was charged with and convicted of second-degree
murder. The trial court concluded that the defendant was unable to knowingly, voluntarily and
intelligently waive his Miranda rights, and therefore excluded the defendant’s incriminating
statements. Kusowski, supra at 658, 660. As a result of the defendant’s confession, the police
had obtained the names of two witnesses, Richard Ban and Robert Savoie, and subsequently
questioned the men about their knowledge of defendant’s involvement in the murder. Id. at 657.
Both indicated that defendant had told them that he thought he had killed the victim, and that the
defendant had blood on his clothing after the murder, and appeared agitated. Id. at 658. The trial
court denied the defendant’s motion to suppress Ban and Savoie’s evidence, and they both
testified at trial. Id.
On appeal to our Supreme Court, the defendant maintained that Ban and Savoie’s
evidence should have been excluded as the fruit of the poisonous tree, Wong Sung v United
States, 371 US 471; 83 S Ct 407; 9 L Ed 2d 441 (1963), because he could not effectuate a valid
waiver of his Miranda rights. Relying on the United States Supreme Court’s decision in
Michigan v Tucker, 417 US 433; 94 S Ct 2357; 41 L Ed 2d 182 (1974),5 Chief Justice Kavanagh,
speaking for the Court, ruled as follows:
In Tucker, supra, the United States Supreme Court held that third-party
testimonial evidence derived from a Miranda violation is not to be excluded
where the interrogation occurred before the decision in Miranda. The Court has
not decided whether the same result obtains in a case such as this, where the
questioning occurred after the Miranda decision. Our reading of Tucker
convinces us that it does.
Prior to Tucker the Court appeared to equate a Miranda violation with an
infringement of a constitutional right. But Tucker makes it clear that a majority of
the Court does not now consider a violation of Miranda as necessarily involving a
violation of the Constitution. Thus, Wong Sun v United States, 371 US 471; 83 S
Ct 407; 9 L Ed 2d 441 (1963), which held “that the ‘fruits’ of police conduct
5
The defendant in Tucker was charged with rape arising from the sexual assault of a forty-threeyear-old woman in Pontiac. In Tucker, supra at 436, the defendant gave a statement to the police
before the United States Supreme Court handed down its decision in Miranda. Therefore, the
defendant was not advised of his right to appointed counsel. Id. When questioned about his
activities on the night of the rape, the defendant told the police he was with another man, Robert
Henderson. Id. After the police spoke with Henderson, he discredited the defendant’s story,
indicating that the defendant left his presence at an earlier time, and that defendant had scratches
on his face the next day. Id. According to Henderson, the defendant told him that he was with a
woman the night before. Id.
Concluding that the defendant’s statement did not violate the Fifth Amendment privilege
against compulsory self-incrimination because it was voluntarily given, id. at 444-445, the
Tucker Court noted that although the “procedural safeguards” of Miranda were not adhered to,
id. at 444, exclusion of Henderson’s testimonial evidence was not warranted. Id. at 448.
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which actually infringed a defendant’s Fourth Amendment rights must be
suppressed”, is not controlling precedent is involved. Tucker, supra, 445-446.
Tucker therefore indicates that the applicability of the exclusionary rule
under circumstances involving testimony obtained as a result of Miranda
violation is not a foregone conclusion, but would in essence involve an extension
of the suppression rule. In recent cases the Supreme Court has refused to extend
application of the exclusionary rule beyond those circumstances in which it
already operates. [Kusowski, supra at 660-661 (footnote omitted).]
After reviewing other cases from the United States Supreme Court, the Kusowski Court
reversed the judgment of the Court of Appeals, thereby affirming the trial court’s denial of the
defendant’s motion to suppress the testimonial evidence of the two witnesses discovered as a
result of defendant’s statement after an invalid Miranda waiver. Id. at 662.
Our Supreme Court decided Kusowski in 1978. In 1985, the United States Supreme
Court decided Oregon v Elstad, 470 US 298; 105 S Ct 1285; 84 L Ed 2d 222 (1985). In Elstad,
the defendant, convicted of first-degree burglary, argued that the fruit of the poisonous tree
doctrine precluded the admission of his statement given after he was properly advised of his
Miranda rights, which followed an initial statement made in violation of Miranda. When the
defendant was arrested by the police, before he was advised of his Miranda rights, he told them
he was involved in the burglary. Id. at 301. Later, at the sheriff’s headquarters, after being
advised of his Miranda rights, the defendant gave a fully voluntary statement, in which he
confessed in detail to his involvement in the burglary. Id. at 301-302. The United States
Supreme Court, speaking through Justice O’Connor, rejected the defendant’s argument that the
second statement was inadmissible under the fruit of the poisonous tree doctrine. Id. at 306.
[A]s we explained in [New York v] Quarles [467 US 649; 104 S Ct 2626; 81 L Ed
2d 550 (1984)], and Tucker, a procedural Miranda violation differs in significant
respects from violations of the Fourth Amendment, which have traditionally
mandated a broad application of the “fruits” doctrine. The purpose of the Fourth
Amendment exclusionary rule is to deter unreasonable searches, no matter how
probative their fruits. Dunaway v New York, 442 US 200, 216-217; 99 S Ct 2248;
60 L Ed 2d 824 (1979); Brown v Illinois, 422 US 590; 95 S Ct 2254; 45 L Ed 2d
416 (1975). “The exclusionary rule, . . . when utilized to effectuate the Fourth
Amendment, serves interests and policies that are distinct from those that it serves
under the Fifth.” Id. at 601, 95 S Ct 2254; 45 L Ed 2d 416.
***
The Miranda exclusionary rule, however, serves the Fifth Amendment and
sweeps more broadly than the Fifth Amendment itself. It may be triggered even
in the absence of a Fifth Amendment violation. The Fifth Amendment prohibits
use by the prosecution in its case in chief only of compelled testimony. Failure to
administer Miranda warnings creates a presumption of compulsion.
Consequently, unwarned statements that are otherwise voluntary within the
meaning of the Fifth Amendment must nevertheless be excluded from evidence
under Miranda. Thus, in the individual case, Miranda’s preventative medicine
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provides a remedy even to the defendant who has suffered no constitutional harm.
See New York v Quarles, supra, at 654; 104 S Ct 2626; 81 L Ed 2d 550; Michigan
v Tucker, 417 US 433, 444; 94 S Ct 2357; 41 L Ed 2d 182 (1974).] [Elstad, supra
at 306-307.]
Because the defendant’s second statement in Elstad was given voluntarily and was not
the product of coercive police conduct, the Elstad Court concluded that it was admissible at trial.
Id. at 318. Thus, in Elstad, the United States Supreme Court reiterated its previous position from
Tucker, supra, that the fruit of the poisonous tree doctrine is not applicable where the procedural
safeguards of Miranda were not complied with and the defendant’s constitutional rights have not
been infringed on. Id. at 308.
Returning to the present case, the parties have agreed that defendant could not
competently waive his Miranda rights. Thus, his statement to the police given after he was
advised of Miranda was properly suppressed. Tucker, supra at 445. However, under the
authority of Tucker, Elstad, and Kusowski, it is clear that the derivative testimonial evidence of
the complainant, discovered as a result of defendant’s confession, may properly be admitted into
evidence.
On appeal, defendant intimates that Karson engaged in misconduct by continuing to
interview defendant after becoming aware of defendant’s mental limitations. In this vein, the
trial court also expressed its concern that Karson continued to interview defendant after
observing defendant’s demeanor. However, defendant does not specifically argue that his
statement to Karson at the police station was involuntary to the extent that it violated the Fifth
Amendment right against compulsory self-incrimination or the Due Process Clause of the
Fourteenth Amendment. See People v Daoud, 462 Mich 621, 631; 614 NW2d 152 (2000);
Cipriano, supra at 331, 334. Although we are aware that an individual’s mental limitations and
concomitant “susceptibility to surrounding pressures or inability to comprehend the
circumstances” should be accounted for in determining voluntariness, People v Belknap, 146
Mich App 239, 241; 379 NW2d 437 (1985), our independent review of the record, People v
Robinson, 386 Mich 551, 557; 194 NW2d 709 (1972), does not reveal any indication of “police
overreaching” or otherwise coercive police activity, a “necessary predicate” to a finding that a
statement was involuntary and that its admission would violate the Fourteenth Amendment.
Colorado v Connelly, 479 US 157, 163-164, 167; 107 S Ct 515; 93 L Ed 2d 473 (1986); People v
Cheatham, 453 Mich 1, 15-16; 551 NW2d 355 (1996) (Boyle J.); People v Wells, 238 Mich App
383, 388; 605 NW2d 374 (1999). Therefore, there is no basis for excluding the evidence under
the fruit of the poisonous tree doctrine. Elstad, supra at 308.
Finally, we would be remiss if we did not acknowledge that in Dickerson v United States,
530 US 428, 120 S Ct 2326; 147 L Ed 2d 405 (2000), the United States Supreme Court recently
held that Miranda is a “constitutional decision” and is “constitutionally based.” See Attebury,
supra at 669; Daoud, supra at 638. Although defendant does not advance this argument on
appeal, we are not persuaded that the Court’s decision in Dickerson renders improper our
reliance on Tucker, Elstad, and Kusowski, cases recognizing that the Miranda warnings were not
constitutionally required. For instance, recently in United States v DeSumma, 272 F3d 176, 180
(CA 3, 2001), the United States Court of Appeals for the Third Circuit rejected the defendant’s
argument that Dickerson’s “pronouncement of Miranda’s constitutionality casts doubt on earlier
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[United States Supreme Court] cases denying suppression of derivative evidence” on the basis of
the fruit of the poisonous tree doctrine where a Miranda violation has occurred.
We cannot agree with the defendant’s reading of Dickerson because the
Supreme Court appeared to anticipate and reject it. The Court explained that
“[o]ur decision in [Elstad] – refusing to apply the traditional ‘fruits’ doctrine
developed in Fourth Amendment cases – does not prove that Miranda is an
unconstitutional decision, but simply recognizes the fact that unreasonable
searches under the Fourth Amendment are different from unwarned interrogations
under the Fifth Amendment.”
Dickerson thus continued to observe the distinction between Miranda’s
application to cases involving the Fifth, rather the Fourth Amendment.
Ultimately, the Fifth Amendment prevents the use of the non-Mirandized
statement rather than the introduction of derivative evidence. [DeSumma, supra
at 180.]
We are in agreement with the DeSumma Court’s reasoning, and adopt it as our own. See
also United States v Orso, 266 F3d 1030, 1034, n 3 (CA 9, 2001) (concluding that Dickerson
does not alter the Supreme Court’s earlier holding that “fruits” doctrine does not apply to
Miranda violation); United States v Newton, 181 F Supp 2d 157, 180 (ED NY, 2002) (holding
that Dickerson did not overrule the Court’s earlier holding in Elstad); but see United States v
Kruger, 151 F Supp 2d 86, 101 (D Me, 2001) (holding that Dickerson “changed the landscape”
by conferring constitutional status on Miranda and that tangible evidence derived from a
Miranda violation must be suppressed). Accordingly, we agree with the prosecutor that the trial
court erred in suppressing the complainant’s testimony.
Reversed and remanded for proceedings consistent with this opinion. We do not retain
jurisdiction.
/s/ Peter D. O’Connell
/s/ Helene N. White
/s/ Jessica R. Cooper
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