PEOPLE OF MI V MICHAEL WILLIAM MUNGO
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
FOR PUBLICATION
April 13, 2010
9:10 a.m.
Plaintiff-Appellant,
v
No. 269250
Washtenaw Circuit Court
LC No. 05-001221-FH
MICHAEL WILLIAM MUNGO,
Defendant-Appellee.
ON REMAND
Before: WHITBECK, P.J., and TALBOT and ZAHRA, JJ.
ZAHRA, J.
The prosecutor appeals as of right the circuit court’s order granting defendant’s motion to
suppress evidence and quash the information. Previously, this Court reversed the circuit court’s
order, holding that “a police officer may search a car incident to a passenger’s arrest where
before the search there was no probable cause to believe that the car contained contraband or that
the driver and owner of the car had engaged in any unlawful activity.” People v Mungo, 277
Mich App 577, 578; 747 NW2d 875 (2008). Following this Court’s decision, defendant
appealed to our Supreme Court, which held the application for leave to appeal in abeyance
pending release of the United States Supreme Court decision in Arizona v Gant, 556 US ___;
129 S Ct 1710; 173 L Ed 2d 485 (2009). On April 21, 2009, the United States Supreme Court
issued an opinion in Gant, which held that a vehicle may not be searched “incident to a recent
occupant’s arrest after the arrestee has been secured and cannot access the interior of the
vehicle.” Id. at 1714. Consequently, our Supreme Court has vacated this Court’s decision in
Mungo and remanded for reconsideration in light of Gant. People v Mungo, 483 Mich 1091
(2009). On remand, we affirm the circuit court’s order suppressing evidence and quashing the
Information.
I. BASIC FACTS AND PROCEDURE
As stated in this Court’s previous opinion:
Washtenaw County Sheriff’s Deputy Ryan Stuck lawfully initiated a
traffic stop of a car driven by defendant. Mark Dixon was the sole passenger in
the car. Upon request, defendant produced the vehicle registration and proof of
insurance. Deputy Stuck also requested the occupants’ driver’s licenses and ran
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Law Enforcement Information Network (LEIN) checks on both Dixon and
defendant. Deputy Stuck found that Dixon had two outstanding warrants issued
for failing to appear in court to answer traffic-violation charges. Deputy Stuck
arrested Dixon, asked his dispatcher to send another officer to assist him, and
secured Dixon in the back of his squad car. Deputy Stuck directed defendant to
step out of his car and conducted a pat-down search. Thereafter, Deputy Stuck
searched defendant’s car and found an unloaded gun in a case underneath the
driver’s seat and ammunition in the glove compartment. Deputy Stuck asked
defendant to produce a permit to carry a concealed weapon. However, defendant
produced only a permit to purchase a firearm. Defendant’s LEIN check did not
reveal that he had been issued a concealed-weapons permit. Deputy Stuck
arrested defendant for unlawfully carrying a concealed weapon.
In the circuit court, defendant moved to quash the information and
suppress evidence of the gun. The prosecutor relied on [Belton] to argue that the
arrest of any person in a car justifies a search of the passenger compartment of
that car. The prosecutor argued that the search that led to the discovery of the gun
was constitutionally permissible because Dixon, a passenger in defendant’s car,
was lawfully arrested. Defendant relied on [Missouri] v Bradshaw, 99 SW3d 73
(Mo App, 2003), a case in which a divided panel of the Missouri Court of
Appeals distinguished Belton and held that police officers cannot lawfully search
a driver’s vehicle following the arrest of a passenger where the passenger was
safely arrested and there was no reasonable suspicion that the driver possessed
unlawful items.
The circuit court distinguished Belton and followed Bradshaw. The
circuit court concluded that defendant was not under arrest at the time Deputy
Stuck searched his car. The circuit court further concluded that defendant had a
protected privacy interest in his car. The circuit court held that there was no
probable cause to arrest defendant and, therefore, the search of his car was not
constitutionally permissible. This appeal followed. [Mungo, 277 Mich App at
578-580 (footnote omitted).]
II. ANALYSIS
A. STANDARD OF REVIEW
This Court reviews de novo a trial court’s decision to dismiss a charge on legal grounds.
People v Owen, 251 Mich App 76, 78; 649 NW2d 777 (2002). This Court reviews a trial court’s
findings of fact for clear error. MCR 2.613(C).
B. APPLICATION OF GANT V ARIZONA
In Gant, 129 S Ct at 1714-1715, two persons were arrested outside a residence at which
narcotics allegedly were sold. These persons were secured in separate police cars. Defendant
Gant, who had been at the residence earlier, arrived in his vehicle and was arrested for driving
with a suspended license after he had exited the vehicle and walked some 10 to 12 feet. An
additional patrol car arrived, and Gant was secured in the back of that car. Two officers searched
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Gant’s car and found a gun and a bag of cocaine. Ultimately, the Arizona Supreme Court held
that the search of Gant’ s car was unreasonable under the Fourth Amendment to the United
States Constitution, US Const, Am IV. Gant, 129 S Ct at 1715.
The United Stated Supreme Court in Gant revisited the issue of what circumstances
permit a police officer to search the passenger compartment of a vehicle incident to a recent
occupant’s arrest. Id. at 1716. The Gant Court began its analysis by noting that generally
warrantless searches are per se unreasonable under the Fourth Amendment. One exception to
this general rule is that a search may be permissible if it is incident to a lawful arrest. That
exception “derives from interests in officer safety and evidence preservation that are typically
implicated in arrest situations.” Id. A search incident to arrest may include only the person of
the arrestee and the area within the immediate control of the arrestee, i.e., the area in which the
arrestee might gain a weapon or evidence that could be destroyed. Id., citing Chimel v
California, 395 US 752, 763; 89 S Ct 2034; 23 L Ed 2d 685 (1969). The Gant Court explained
that in New York v Belton, 453 US 454; 101 S Ct 2860; 69 L Ed 2d 768 (1981), the Supreme
Court considered the application of the Chimel rule in the context of a vehicle search. The
Supreme Court held that if an officer lawfully arrests “‘the occupant of an automobile, he may,
as a contemporaneous incident of that arrest, search the passenger compartment of the
automobile and any containers therein.’” Gant, 129 S Ct at 1717, quoting Belton, 453 US at 460.
The Supreme Court observed that the decision in Belton “has been widely understood to
allow a vehicle search incident to the arrest of a recent occupant even if there is no possibility the
arrestee could gain access to the vehicle at the time of the search.” Gant, 129 S Ct at 1718. The
Supreme Court continued:
Under this broad reading of Belton, a vehicle search would be authorized
incident to every arrest of a recent occupant notwithstanding that in most cases
the vehicle’s passenger compartment will not be within the arrestee’s reach at the
time of the search. To read Belton as authorizing a vehicle search incident to
every recent occupant’s arrest would thus untether the rule from the justifications
underlying the Chimel exception—a result clearly incompatible with our
statement in Belton that it “in no way alters the fundamental principles established
in the Chimel case regarding the basic scope of searches incident to lawful
custodial arrests.” 453 U.S. at 460, n 3, 101 S. Ct. 2860, 69 L. Ed. 2d 768.
Accordingly, we reject this reading of Belton and hold that the Chimel rationale
authorizes police to search a vehicle incident to a recent occupant’s arrest only
when the arrestee is unsecured and within reaching distance of the passenger
compartment at the time of the search.
Although it does not follow from Chimel, we also conclude that
circumstances unique to the vehicle context justify a search incident to a lawful
arrest when it is “reasonable to believe evidence relevant to the crime of arrest
might be found in the vehicle.” Thornton [v United States, 541 US 615, 632;] 124
S Ct 2127[;] 158 L Ed 2d 905 [(2004)], (SCALIA, J., concurring in judgment.) In
many cases, as when a recent occupant is arrested for a traffic violation, there will
be no reasonable basis to believe the vehicle contains relevant evidence. See, e.g.,
Atwater v Lago Vista, 532 U.S. 318, 324, 121 S. Ct. 1536, 149 L. Ed. 2d 549
(2001); Knowles v Iowa, 525 U.S. 113, 118; 119 S. Ct. 484, 142 L. Ed. 2d 492
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(1998). But in others, including Belton and Thornton, the offense of arrest will
supply a basis for searching the passenger compartment of an arrestee’s vehicle
and any containers therein. [Gant, 129 S Ct at 1719.]
The Supreme Court concluded that “[n]either the possibility of access nor the likelihood
of discovering offense-related evidence authorized the search in this case.” Id. The Supreme
Court noted that unlike in Belton, where a single police officer had to deal with four unsecured
arrestees, in Gant, five officers were present to deal with three arrestees, all of whom were
secured in police vehicles before the search of Gant’s car occurred. Thus, Gant could not reach
into the passenger compartment of his vehicle at the time the vehicle was searched.
Furthermore, unlike in Thornton, where the defendant was arrested for a narcotics offense, Gant
was arrested for driving with a suspended license. The police could not expect to find evidence
of that offense from a search of Gant’s car. The Gant Court determined that “[b]ecause police
could not reasonably have believed that Gant could have accessed his car at the time of the
search or that evidence of the offense for which he was arrested might have been found therein,
the search in this case was unreasonable.” Id.
The Supreme Court concluded:
Police may search a vehicle incident to a recent occupant’s arrest only if
the arrestee is within reaching distance of the passenger compartment at the time
of the search or it is reasonable to believe the vehicle contains evidence of the
offense of arrest. When these justifications are absent, a search of an arrestee’s
vehicle will be unreasonable unless police obtain a warrant or show that another
exception to the warrant requirement applies. The Arizona Supreme Court
correctly held that this case involved an unreasonable search. Accordingly, the
judgment of the State Supreme Court is affirmed. [Id. at 1723-1724.]
Applying Gant to the facts presented in this case, we conclude that the search of
defendant’s vehicle incident to the arrest of Dixon was illegal and that the trial court correctly
granted defendant’s motion to suppress the evidence and quash the information.
Deputy Stuck placed Dixon under arrest after discovering that Dixon had two outstanding
warrants for traffic violations. The officer secured Dixon in the back of the police vehicle. The
officer searched the vehicle only after an additional police unit had arrived and defendant had
been secured in the back of that police vehicle. Defendant was not under arrest at the time the
search occurred, and Deputy Stuck searched defendant’s vehicle incident to Dixon’s arrest.
Neither defendant nor Dixon would have been able to reach into the passenger compartment of
defendant’s vehicle when the search occurred; thus, concern for officer safety was not at issue.
See Gant, 129 S Ct at 1716. Further, because Dixon was placed under arrest for traffic
violations, there would have been no reasonable basis for the officer to conclude that evidence of
those offenses could be found in a search of defendant’s vehicle. See id. at 1719; Thornton, 541
US at 632. Thus, we conclude that Deputy Stuck’s warrantless search of defendant’s car was
unreasonable and in violation of the Fourth Amendment. See Gant, 129 S Ct at 1723-1724.
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C. THE EXCLUSIONARY RULE AND THE RETROACTIVITY DOCTRINE
This Court sua sponte issued an order directing the parties to file supplemental briefs
addressing application of the good faith exception to the exclusionary rule, see United States v
Leon, 468 US 897; 104 S Ct 3405; 82 L Ed 2d 677 (1984); People v Goldston, 470 Mich 523;
682 NW2d 479 (2004), and the retroactivity doctrine, see Griffith v Kentucky, 479 US 314, 328;
107 S Ct 708; 93 L Ed 2d 649 (1987); People v Bell (On Second Remand), 264 Mich App 58;
689 NW2d 732 (2004). Defendant ignored this Court’s directive. Plaintiff filed a brief
acknowledging that Gant must be applied retroactively in the instant case. Nonetheless, plaintiff
advocated for reversal of the lower court’s order of suppression under the good faith exception to
the exclusionary rule. We conclude that the search at issue in this case does not fall within the
good faith exception to the exclusionary rule. Defendant is entitled to have the rule of law
established in Gant applied to this case.
The judicially-created exclusionary rule operates to preclude from use at trial evidence
obtained in violation of the Fourth Amendment. Leon, 468 US at 906. The purpose of the
exclusionary rule is to deter police misconduct. Id. In Leon, the United States Supreme Court
established a good-faith exception to the exclusionary rule, noting that application of the
exclusionary rule requires weighing the benefits of the resulting deterrence of police misconduct
against the costs incurred by preventing the introduction of otherwise valid evidence. Id. at 906907. The Leon Court concluded that circumstances could exist in which these costs could
outweigh any slight benefits gained by application of the exclusionary rule. For example, if a
law enforcement officer acted in good faith and in an objectively reasonable manner on a search
warrant later found to be defective due to judicial error, excluding the evidence obtained in the
search would not operate to deter police misconduct. Id. at 920-921. The Leon Court concluded
that the exclusionary rule should be applied on a case-by-case basis, and only if application
would deter police misconduct. Id. at 918.1
The retroactivity doctrine provides that “a new rule for the conduct of criminal
prosecutions is to be applied retroactively to all cases, state or federal, pending on direct review
or not yet final, with no exception for cases in which the new rule constitutes a ‘clear break’ with
the past.” Griffith, 479 US at 328. The interaction between the good faith exception to the
exclusionary rule and the retroactivity doctrine has been addressed by a number of federal courts.
Diverse opinions have emerged in the federal courts in regard to the interaction and application
of these two legal concepts.
In United States v Buford, 623 F Supp 2d 923 (MD Tenn, 2009), a case decided after the
United States Supreme Court’s decision in Gant, the United States District Court for the Middle
1
In People v Goldston, 470 Mich 523; 682 NW2d 479 (2004), our Supreme Court adopted the
good-faith exception to the exclusionary rule in Michigan. Const 1963, art 1, § 11. The
Goldston Court held that the exclusionary rule should be applied on a case-by-case basis, and
only in circumstances where exclusion of evidence would serve to deter police misconduct that
occurs during search or seizure or in the preparation of an affidavit. Goldston, 470 Mich at 541543.
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District of Tennessee addressed application of the good faith exception to the exclusionary rule
in a case factually similar to the instant case. The Buford court concluded that while there is
tension between the policies supporting the exclusionary rule and the retroactivity doctrine, the
retroactivity doctrine required rejection of the good faith exception to the exclusionary rule in
that case:
[A]n extension of the “good faith” exception would lead to perverse results. For
instance, under the [prosecution]’s argument, there is no basis for distinguishing
the petitioner in the “new rule” case from similarly situated defendants whose
cases were proceedings when the new rule was announced. That is, from the
[prosecution]’s view of the “good faith” exception, there is no distinction between
Gant and the defendant here, because both arresting officers were operating in a
Belton world. Under the [prosecution]’s argument, then, Gant himself would only
be entitled to the rather hollow relief of knowing that the search he was subjected
to was a violation of his constitutional rights; that is, he would not be entitled to
suppression of the evidence because the evidence was obtained in good faith
reliance on Belton. Anyone similarly situated to Gant (such as the defendant)
who was unfortunate enough to be arrested pre-Gant would likewise receive the
same hollow relief. Anyone similarly situated to Gant, however, who was
arrested subsequent to the Gant decision would be entitled to suppression of the
evidence because the Gant decision would eliminate the good faith requirement.
Therefore, the individual (Gant) who successfully convinced the Court that his
Fourth Amendment rights had been violated would run the risk of criminal
penalty, while subsequent defendants might go free, despite being subject to
identical intrusions on privacy. Indeed, discussing a defendant similarly situated
to the one in this case, one court noted, “[t]o say that an exception exists under the
Leon rule to the application of [a] United States Supreme Court[] holding . . .
which would permit the principle of the [] holding to be ignored [in a case
subsequent to the holding] . . . to Defendant’s prejudice, creates logical and
rationalogical anomalies in implementation of Fourth Amendment doctrine of a
decidedly perverse effect.” U.S. v Holmes, 175 F. Supp. 2d 62 n. 6 (D. Me. 2001)
(noting the conundrum but not resolving the issue). [Buford, 623 F Supp 2d at
926-927.]
The Buford court rejected the prosecution’s contention that its interpretation of the law
eliminated the good faith doctrine, noting that the cases that articulated the doctrine had not
“gone so far as to extend the doctrine to reliance on decisions of the United States Supreme
Court that were reversed or overturned while the defendant’s case was on review.” Id. at 927.
The Buford court suppressed the evidence obtained in the search of the defendant’s vehicle. Id.
A contrary result was reached in United States v Grote, 629 F Supp 2d 1201 (ED Wa,
2009) (Grote I), where the United States District Court for the Eastern District of Washington
rejected the defendant’s assertion that application of the good-faith exception violated the
retroactivity doctrine set out in Griffith and relied on by Buford. In its order denying
reconsideration, the Court stated:
This court understands the importance of the retroactivity doctrine in
insuring that similarly situated criminal defendants are treated the same. In this
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court’s view, however, the good faith exception to the exclusionary rule is of
equal importance. The exclusionary rule is intended to deter future police
misconduct, not to cure past violations of a defendant’s rights. Future police
misconduct is not deterred when, as here, the officer did not engage in any
misconduct and did not make a mistake of fact or law, but acted in objective good
faith on the search incident to arrest law as it existed at the time, and had existed
for many years. There is no deterrent effect to be gained by applying the
exclusionary rule in this case. [United States v Grote, ___ F Supp 2d ___ (ED
Wa, 2009) (Grote II).]
Similarly in United States v McCane, 573 F3d 1037, 1045 (CA 10, 2009), decided July
28, 2009, the United States Court of Appeals for the Tenth Circuit found that, in light of Gant,
the district court erred in concluding that the search of the defendant’s vehicle was valid, but
affirmed the district court’s denial of the defendant’s motion to suppress based on the good-faith
exception to the exclusionary rule. The McCane court noted that Tenth Circuit pre-Gant
precedent supported the search of the defendant’s vehicle. Id. at 1044-1045. The McCane court
held that the district court properly denied the defendant’s motion to suppress the evidence. Id.
at 1040, 1045. In so doing, the court concluded that application of the retroactivity doctrine did
not preclude application of the good faith exception to the exclusionary rule:
McCane argues that the retroactivity rule announced in Griffith v.
Kentucky, 479 U.S. 314, 322-23, 107 S. Ct. 708, 93 L. Ed. 2d 649 (1987), requires
application of the Supreme Court’s holding in Gant to this case. The issue before
us, however, is not whether the Court’s ruling in Gant applies to this case, it is
instead a question of the proper remedy upon application of Gant to this case. In
Leon, the Supreme Court considered the tension between the retroactive
application of Fourth Amendment decisions to pending cases and the good-faith
exception to the exclusionary rule, stating that retroactivity in this context “has
been assessed largely in terms of the contribution retroactivity might make to the
deterrence of police misconduct.” 468 US at 897, 912-13. The lack of deterrence
likely to result from excluding evidence from searches done in good-faith reliance
upon settled circuit precedent indicates the good-faith exception should apply in
this context. See Krull, 480 U.S. at 360 (declining to apply a court decision
declaring a statute unconstitutional to a case pending at the time the decision was
rendered and instead applying the good-faith exception to the exclusionary rule
because the officer reasonably relied upon the statute in conducting the search).
[McCane, 573 F3d at 1044 n 5.]
Further, in United States v Lopez, 567 F3d 755, 757-758 (CA 6, 2009) (Lopez I), the
United States Court of Appeals for the Sixth Circuit reversed and remanded the defendant’s
conviction in light of Gant, notwithstanding its finding that the search was permitted under the
Belton standard. On remand, the prosecution asserted that “the exclusionary rule should not
apply to the questioned evidence in this case because the search of [the defendant’s] car was
conducted ‘in good faith reliance on Belton and its progeny.’” United States v Lopez, 655 F
Supp 2d 720, 728 (ED Ky, 2009) (Lopez II). The United States District Court for the Eastern
District of Kentucky noted that Gant did not address “the consequences of its holding regarding
searches conducted incident to lawful arrests in reliance on Belton and subsequent decisions
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applying Belton.” Id. at 725. The district court also noted that the Sixth Circuit court did not
“reverse the judgment of conviction with instructions that the charges be dismissed. Instead, it
stated that, ‘[t]he judgment of the district court is reversed and remanded for further proceedings
consistent with this opinion.” Id. at 727-728 (emphasis in Lopez II). The district court thus
concluded that the Sixth Circuit court’s “opinion did not restrict this [c]ourt from considering
whether the good faith exception to the exclusionary rule applies to the facts presented.” Id. at
732.
The district court then conducted a hearing in regard to whether the police officer acted in
good faith in conducting the search of the defendant’s car. United States v Lopez, ___ F Supp 2d
at ___ n 1 (ED Ky, 2009) (Lopez III). The district court observed, “Like its sister circuits prior to
Gant, the Sixth Circuit recognized as lawful under Belton searches of vehicles conducted
incident to an arrest even in circumstances where the arrestee did not have access to the
passenger compartment of his car.” Id. at ___, citing United States v White, 871 F2d 41, 44 (CA
6, 1989) and United States v Martin, 289 F3d 392 (CA 6, 2002).2
The Lopez III court then concluded:
Here, the arrest was proper and the officer conducted the search in accordance
with existing case law from this circuit. There is absolutely no evidence (or even
argument) that the officer conducting the search was reckless in any way. While
police conducting searches incident to arrests will likely change following Gant,
the officer conducting the search of Lopez’s vehicle acted appropriately at that
time. In short, a reasonably well-trained officer would not have known or
concluded that the search was “illegal” in light of all the circumstances presented.
[Lopez III, ___ F Supp 2d at ___.]
Preliminarily, we reject the notion expressed in Buford, that the retroactivity doctrine
precludes application of the good faith exception to the exclusionary rule. As stated in Grote II,
___ F Supp 2d at ___, these two legal principles are of equal importance. Further, each principle
presents constitutional concerns distinct from the other. As recently stated, “there is a clear
dichotomy between Fourth Amendment violation and remedy, the retroactive application of Gant
here to conclude that there was a violation does not inevitably lead to the conclusion that the
good-faith exception cannot be considered to determine the appropriate remedy.” People v Key,
___ P3d ___ (Colo App, 2010).
We conclude that the retroactivity doctrine requires that Gant be applied to the instant
case. The search at issue in the present case violated the Fourth Amendment and was
unconstitutional. Having made this determination, our next inquiry is whether the evidence
obtained as a result of the unconstitutional search should be suppressed. It is in this context that
we examine the good faith exception to the exclusionary rule.
2
The district court also cited several cases not selected for publication.
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Whether reliance on case law can form a basis to invoke the good faith exception to the
exclusionary rule is a significant legal question. The United States Supreme Court is silent on
this issue. The Sixth Circuit and Tenth Circuit federal courts of appeal have expanded the good
faith exception to apply to a law enforcement officer’s reliance on case law. In McCane and
similarly in Lopez, however, it was the clear and established law of the circuit that law
enforcement officers were vested with the right to search a vehicle incident to a recent
occupant’s arrest. McCane, 573 F3d at 1041-1042 (citing several Tenth Circuit opinions
upholding searches without regard to the nature of the offense and where the defendant was
already restrained); Lopez III, ___ F Supp 2d at ___ (“Like its sister circuits prior to Gant, the
Sixth Circuit recognized as lawful under Belton searches of vehicles conducted incident to an
arrest even in circumstances where the arrestee did not have access to the passenger
compartment of his car.”). See also Grote I, 629 F Supp 2d at 1205 (noting that at the time the
defendant’s vehicle was searched it was “well accepted in the Ninth Circuit and elsewhere” that
police could search a motor vehicle incident to a lawful arrest, “without regard to whether an
arrestee was secured or unsecured, and without regard to whether evidence particular to the
crime of arrest might be found in the vehicle.”).
Assuming without deciding that reliance on Michigan case law can form a basis to invoke
the good faith exception to the exclusionary rule, we conclude that the exception does not apply
in the present case. Unlike Lopez and McCane, where the case law in each circuit was
established and clear, the instant case represented the first published case in Michigan to address
the applicability and extension of Belton to a vehicle search solely incident to a passenger’s
arrest. Indeed, this panel published our prior opinion in this matter because we concluded this
issue presented a matter of first impression in Michigan. Given our conclusion that the law in
this state on this point was not established and clear, the search and seizure of evidence from
defendant’s vehicle could not, as a matter of law, have been premised on law enforcement’s
good-faith reliance on case law. We therefore conclude that the good faith exception to the
exclusionary rule has no application in the present case. Pursuant to the retroactivity doctrine,
defendant is entitled to have the rule of law announced in Gant applied to this case.
III. CONCLUSION
We affirm the circuit court’s order granting defendant’s motion to suppress evidence and
quash the Information.
/s/ Brian K. Zahra
/s/ William C. Whitbeck
/s/ Michael J. Talbot
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