                          STATE OF MICHIGAN

                           COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                    UNPUBLISHED
                                                                    April 5, 2016
               Plaintiff-Appellee,

v                                                                   No. 322625
                                                                    Macomb Circuit Court
PAUL ROBERT HARTIGAN,                                               LC No. 2013-000669-FH

               Defendant-Appellant.


Before: SERVITTO, P.J., and WILDER and BOONSTRA, JJ.

PER CURIAM.

       Defendant appeals by leave granted his guilty plea convictions to possession with intent
to deliver less than 5 kilograms of marijuana, MCL 333.7401(2)(d)(iii), and attempted
maintenance of a drug house, MCL 333.7405(1)(d). The circuit court sentenced defendant to
two years’ probation for his convictions. We reverse and remand to the circuit court for further
proceedings.

        In September 2012, the County of Macomb Enforcement Team (COMET) police
officers, acting on a tip that defendant was conducting a marijuana grow operation, went to
defendant’s residence to investigate the claims. While speaking with defendant through a
window at the front door, the police officers noticed the strong smell of marijuana emanating
from the residence, in addition to planter pots and bags of potting soil within the living room.
Defendant refused to cooperate with the police officers after several minutes of conversation
because they did not have a search warrant. After approximately three minutes, the police
officers forcibly entered defendant’s residence, allegedly fearing that defendant was destroying
evidence. The police officers conducted a protective sweep of the residence and secured the
premises, and one police officer went back to the police station to obtain a search warrant. After
procuring the search warrant, officers conducted a thorough search of the residence, recovering
approximately 90 marijuana plants and 360 grams of bagged loose marijuana.

        During defendant’s preliminary examination, the district court considered whether the
police officers’ initial warrantless entry was a Fourth Amendment violation, thus necessitating
the exclusion of all evidence found within the residence. The district court concluded that
exigent circumstances existed, thus justifying the police officers’ warrantless entry. At the
circuit court, upon defendant’s motion to quash the district court’s bindover decision, the circuit



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judge concluded that exigent circumstances did not exist, but that the evidence seized was
nonetheless admissible under the inevitable discovery doctrine.

         On appeal, defendant argues that by relying on evidence obtained in violation of the
Fourth Amendment, the district court improperly bound him over to the circuit court. Defendant
additionally contends that the circuit court erred by applying the inevitable discovery doctrine to
justify the illegal search of defendant’s residence. We agree.

        We review “for an abuse of discretion a district court’s decision to bind over a
defendant.” People v Hudson, 241 Mich App 268, 276; 615 NW2d 784 (2000). “An abuse of
discretion occurs when the court chooses an outcome that falls outside the range of reasonable
and principled outcomes.” People v Unger, 278 Mich App 210, 217; 749 NW2d 272 (2008).
Furthermore, we pay no deference to the circuit court’s decision to grant or reject a motion to
quash the bindover. Hudson, 241 Mich App at 276.

       A circuit court’s decision with respect to a motion to quash . . . is not entitled to
       deference because this Court applies the same standard of review to this issue as
       the circuit court. This Court therefore essentially sits in the same position as the
       circuit court when determining whether the district court abused its discretion. Id.

We review de novo preliminary questions of law, including interpretation of the rules of
evidence as well as the effect of constitutional provisions. People v Benton, 294 Mich App 191,
195; 817 NW2d 599 (2011).

        To bind a defendant over to the circuit court, the magistrate at a preliminary examination
must “determine whether a felony was committed and whether there is probable cause to believe
the defendant committed it.” People v Yost, 468 Mich 122, 125-126; 659 NW2d 604 (2003).
Probable cause exists where the evidence is “sufficient to cause a person of ordinary prudence
and caution to conscientiously entertain a reasonable belief of the accused’s guilt.” Id. at 126
(citation and quotation marks omitted). In determining whether probable cause exists, the
magistrate must only consider legally admissible evidence. People v Crippen, 242 Mich App
278, 282; 617 NW2d 760 (2000).

        The Fourth Amendment to the United States Constitution protects against “unreasonable
searches and seizures.” US Const, Am IV. Generally, evidence obtained in violation of the
Fourth Amendment will be inadmissible due to the exclusionary rule. See, e.g., People v
Stevens, 460 Mich 626, 633-634; 597 NW2d 53 (1999). Furthermore, evidence that derives from
the initial Fourth Amendment violation will be excluded under the “fruit of the poisonous tree”
doctrine. See, e.g., id. at 633-634. However, several exceptions preclude the application of the
exclusionary rule. One such exception is the “exigent circumstances” doctrine, in which the
exclusionary rule will not operate if police “officers possess probable cause to believe that a
crime was recently committed on the premises, and probable cause to believe that the premises
contain evidence or perpetrators of the suspected crime.” People v Snider, 239 Mich App 393,
408; 608 NW2d 502 (2000) (citation and quotation marks omitted). Furthermore, “the police
must further establish the existence of an actual emergency on the basis of specific and objective




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facts indicating that immediate action is necessary to . . . prevent the imminent destruction of
evidence.” Id. (citation and quotation marks omitted).

        Another warrantless search exception is the inevitable discovery doctrine. Under this
exception, evidence found in violation of the Fourth Amendment will not be excluded if the
“prosecution can establish by a preponderance of the evidence that the information ultimately or
inevitably would have been revealed in the absence of police misconduct.” Stevens, 460 Mich at
637 (citation and quotation marks omitted).

        The district court erred in finding that the police officers’ initial entry into defendant’s
home was justified by exigent circumstances. There was no “actual emergency on the basis of
specific and objective facts” that would lead to destruction of evidence in this case. Snider, 239
Mich App 408 (citation and quotation marks omitted). The police officers engaged in a brief
conversation with defendant, who indicated that he would be unwilling to cooperate and permit
police entry without a search warrant. The police officers did not hear any noises emanating
from within the house that would indicate that defendant was in the process of destroying 90
marijuana plants of varying sizes—Officer Blackwell “didn’t hear any noises at all.” Officer
Blackwell additionally testified that he did not know how long it would take to destroy
marijuana, and that the only way he had personally destroyed it was by burning it. Therefore, the
lack of an actual emergency based on specific and objective facts disables the exigent
circumstances contention, and, without more, renders the initial warrantless entry into
defendant’s residence a Fourth Amendment violation.

       The circuit court agreed with the above, but nevertheless determined that the bindover
was appropriate given that the evidence considered by the district court was still admissible
under the inevitable discovery doctrine. We disagree.

         Officer Blackwell testified that officers received a tip that a marijuana grow operation
was being conducted at defendant’s home and then, acting on that tip, he arranged for a state
trooper to take a drug canine to defendant’s home. The trooper advised Blackwell that he had
received a positive indication from the dog at defendant’s garage. Taking the drug dog to sniff
outside defendant’s home constitutes a warrantless search under Florida v Jardines, __US__;
133 SCt 1409; 185 L Ed 2d 495 (2013), and evidence, if any, discovered pursuant to the dog
sniff is suppressible.1

        After the dog returned a positive indication, officers returned to defendant’s home at a
later date and spoke to defendant through a window for approximately three minutes before
forcing their way into defendant’s home without the benefit of a warrant. At some point, officers
obtained a search warrant. Also at some point, approximately 90 marijuana plants supported by



1
 Defendant’s case was still pending in the trial court at the time Jardines was decided. The
holding of Jardines is thus unquestionably applicable. People v Carp, 298 Mich App 472, 507-
508; 828 NW2d 685 (2012), quoting Griffith v Kentucky, 479 US 314, 328; 107 S Ct 708; 93 L
Ed 2d 649 (1987).


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a complex insulation, lighting, ventilation, and irrigation infrastructure were discovered within
defendant’s residence, in addition to the approximately 360 grams of bagged marijuana. While
the search warrant and accompanying affidavit do not themselves appear in the lower court
record, both the prosecution and defense made reference to the documents, as did the circuit
court judge, who clearly had it in his hand and read from it.

        Under the inevitable discovery doctrine, the prosecution bears the burden of establishing,
by a preponderance of the evidence, that the evidence or information would have been
discovered by lawful means, in the absence of police misconduct. Stevens, 460 Mich at 637.
Here, the prosecution contends that inevitable discovery applies because had the police decided
to wait to enter defendant’s home until Officer Blackwell arrived with the search warrant, the
home would thereafter have been legally searched and the evidence discovered. However, this
argument requires the assumption that none of the evidence was discovered before the
preparation of the search warrant and affidavit, or by other officers while Officer Blackwell was
gone from the home obtaining the warrant. The record is unclear whether the police officers
discovered any of the evidence before or after Officer Blackwell prepared the search warrant and
affidavit. The record is also unclear as to whether they discovered any of the evidence before or
after Officer Blackwell returned to defendant’s residence with the search warrant.

        Officer Blackwell testified that after officers initially entered the home, he believes that
they made sure no one else was in the residence. Officer Blackwell testified that he was
uncertain as to what took place in the home because he only stayed in the home for a short time
before leaving to secure a search warrant. Based on his experience, he believed that the officers
had gone through the house to make sure that they were safe. Officer Blackwell testified that he
did not know what, if anything, the other officers who remained at the home had done at the
house, including in the basement, while he left to obtain the search warrant and conceded that
they could have opened doors or taken locks off. There was no other testimony as to what took
place inside the home with respect to any evidence prior to the search warrant being obtained.
The only other testimony at preliminary examination was from another sheriff’s deputy who
arrived at the home after the search warrant had been obtained. According to his testimony,
when he arrived, several officers were already in the home and he, personally, did not participate
in the search. If the police officers actually waited until Officer Blackwell prepared the affidavit
and search warrant and then arrived with the search warrant before starting their search for
evidence, then there may not have been a Fourth Amendment issue as the evidence could
conceivably have been found pursuant to a valid search warrant. However, that was not the
evidence presented to the district court. That being the case, the prosecution has not established
by a preponderance of the evidence that the seized evidence would have been discovered by
lawful means absent police misconduct. The district court thus abused its discretion in relying
on the evidence to bind defendant over to the circuit court. Accordingly, the circuit court, which
relied on the district court preliminary examination transcript and district court record, erred in
ruling that the inevitable discovery doctrine applied. The record was insufficient to permit the
circuit court to reach this conclusion. We therefore reverse the decision of circuit court and find
that inevitable discovery doctrine is inapplicable. As a result, the evidence must be suppressed.




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        Reversed and remanded for proceedings not inconsistent with this opinion. We do not
retain jurisdiction.



                                                       /s/ Deborah A. Servitto
                                                       /s/ Kurtis T. Wilder
                                                       /s/ Mark T. Boonstra




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