PEOPLE OF THE STATE OF MICHIGAN v. MICHAEL GEORGIE CARSON (2024)

Redford, J. (dissenting).

I conclude that the record does not support the majority's determination that there was a double jeopardy violation that warrants vacating some of defendant's convictions. Therefore, defendant's trial counsel did not render ineffective assistance by failing to raise a double jeopardy argument. I further conclude that the search warrant authorizing the search of defendant's cell phone did not violate the “particularity” requirement of the Fourth Amendment. To the extent that the search warrant satisfied the Fourth Amendment only with respect to retrieval of the text messages, the constitutionally infirm portion of the warrant could be severed, allowing admission of the text messages. Moreover, even were the search warrant constitutionally defective, the good-faith exception to the exclusionary rule would apply. Additionally, assuming that the text messages extracted from defendant's cell phone were inadmissible under the exclusionary rule, defendant has not established the requisite prejudice in light of the overwhelming untainted evidence of guilt. Thus, defendant's claim of ineffective assistance of counsel relative to his Fourth Amendment “particularity” argument cannot serve as a basis to reverse his convictions. Finally, in my view, none of defendant's appellate arguments left unaddressed by the majority merit reversal. I would affirm defendant's convictions and sentences. Accordingly, I respectfully dissent.

I. INEFFECTIVE ASSISTANCE OF COUNSEL – GENERAL PRINCIPLES

Whether defense counsel was ineffective presents a mixed question of fact and constitutional law, and factual findings are reviewed for clear error, whereas questions of law are subject to de novo review. People v LeBlanc, 465 Mich 575, 579; 640 NW2d 246 (2002). In People v Carbin, 463 Mich 590, 599-600; 623 NW2d 884 (2001), the Michigan Supreme Court recited the principles that govern our analysis of a claim of ineffective assistance of counsel:

To justify reversal under either the federal or state constitutions, a convicted defendant must satisfy [a] two-part test ․ First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not performing as the counsel guaranteed by the Sixth Amendment. In so doing, the defendant must overcome a strong presumption that counsel's performance constituted sound trial strategy. Second, the defendant must show that the deficient performance prejudiced the defense. To demonstrate prejudice, the defendant must show the existence of a reasonable probability that, but for counsel's error, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome. Because the defendant bears the burden of demonstrating both deficient performance and prejudice, the defendant necessarily bears the burden of establishing the factual predicate for his claim. [Quotation marks and citations omitted.]

An attorney's performance is deficient if the representation falls below an objective standard of reasonableness. People v Toma, 462 Mich 281, 302; 613 NW2d 694 (2000).

“This Court does not second-guess counsel on matters of trial strategy, nor does it assess counsel's competence with the benefit of hindsight.” People v Traver (On Remand), 328 Mich App 418, 422-423; 937 NW2d 398 (2019) (quotation marks and citation omitted). But “a court cannot insulate the review of counsel's performance by [simply] calling it trial strategy.” People v Trakhtenberg, 493 Mich 38, 52; 826 NW2d 136 (2012). “Initially, a court must determine whether the strategic choices were made after less than complete investigation, and any choice is reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation.” Id. (quotation marks, citation, and brackets omitted).

II. DOUBLE JEOPARDY

Under the Michigan and federal constitutions, the state cannot twice place an accused in jeopardy for the same criminal offense. See US Const, Am V; Const 1963, art 1, § 15; People v Beck, 510 Mich 1, 11-12; 987 NW2d 1 (2022).¹ The protection against double jeopardy attaches when a defendant is placed on trial before a jury or a judge. Beck, 510 Mich at 12.² Although we need not construe our Constitution consistently with comparable provisions of the United States Constitution, “past interpretations of the [Fifth Amendment's] Double Jeopardy Clause have accurately conveyed the meaning of Const 1963, art. 1, § 15. ․ Therefore, our analysis is the same under each.” Id. at 11 n 1.

“The prohibition against double-jeopardy protects individuals in three ways: (1) it protects against a second prosecution for the same offense after acquittal; (2) it protects against a second prosecution for the same offense after conviction; and (3) it protects against multiple punishments for the same offense.” People v Miller, 498 Mich 13, 17; 869 NW2d 204 (2015) (quotation marks and citation omitted). Relevant to the instant case, the third constitutional protection is referred to as the “multiple punishments” strand of double jeopardy. Id. With respect to the multiple punishments strand, the Supreme Court in Miller explained:

The multiple punishments strand of double jeopardy is designed to ensure that courts confine their sentences to the limits established by the Legislature and therefore acts as a restraint on the prosecutor and the Courts. The multiple punishments strand is not violated where a legislature specifically authorizes cumulative punishment under two statutes. Conversely, where the Legislature expresses a clear intention in the plain language of a statute to prohibit multiple punishments, it will be a violation of the multiple punishments strand for a trial court to cumulatively punish a defendant for both offenses in a single trial. Thus, the question of what punishments are constitutionally permissible is not different from the question of what punishments the Legislative Branch intended to be imposed.

The Legislature, however, does not always clearly indicate its intent with regard to the permissibility of multiple punishments. When legislative intent is not clear, Michigan courts apply the “abstract legal elements” test[.] [Id. at 17-19 (quotation marks, citations, brackets, and ellipses omitted; emphasis added).]

In this case, the majority frames the issue as concerning multiple punishments for the “same act.” I cannot conclude, however, that the double jeopardy issue squarely and solely involves multiple punishments for the “same act.” At trial, the prosecution focused on defendant's actions in “concealing” the money stolen from the safes for purposes of proving the charge of receiving or concealing stolen property valued at $20,000 or more (RCSP), MCL 750.535(2)(a).³ MCL 750.535(1) provides that “[a] person shall not buy, receive, possess, conceal, or aid in the concealment of stolen, embezzled, or converted money, goods, or property knowing, or having reason to know or reason to believe, that the money, goods, or property is stolen, embezzled, or converted.” (Emphasis added.) The crime can be accomplished by knowingly concealing stolen property. When instructing the jury on the elements of RCSP, the trial court touched on the various ways to commit the offense, i.e., buying, possessing, receiving, or concealing stolen property. Consistently with M Crim JI 26.2(4), the trial court instructed the jury that “[t]o conceal means to intentionally hide, disguise, get rid of or do any other act to keep the property from being discovered.”

With respect to the elements of larceny, a prosecutor is required to prove beyond a reasonable doubt that the defendant took someone else's property without consent, that there was some movement of the property, that the defendant intended to permanently deprive the owner of the property, and that the property had a certain fair market value. See M Crim JI 23.1; see also People v Williams, 323 Mich App 202, 205; 916 NW2d 647 (2018), rev'd in part on other grounds 504 Mich 892 (2019).⁴ In this case, the evidence demonstrated that defendant committed and completed the crime of larceny when, without consent, he removed the cash from the safes owned by Mr. Billings and left Billings's home with the money. Although defendant possessed and arguably “received” stolen money at that point for purposes of adjudicating the RCSP charge, the acts of concealment of the stolen cash as argued and relied on by the prosecution occurred long after the larceny. In other words, the offense of larceny was completed before the crime of concealment of stolen property—as urged and theorized by the prosecutor—took place, even though the offense of RCSP would have occurred almost simultaneously with the larceny if “possessing” or “receiving” stolen property served as the basis of the charge. This Court has ruled that a defendant's protection against double jeopardy is not violated if one crime is complete before the other crime takes place, even when the offenses share common elements or one constitutes a lesser offense of the other. People v Bulls, 262 Mich App 618, 629; 687 NW2d 159 (2004); People v Colon, 250 Mich App 59, 63; 644 NW2d 790 (2002); People v Lugo, 214 Mich App 699, 708; 542 NW2d 921 (1995).

There is no way for us to ascertain whether the jury convicted defendant of RCSP premised on concealment, possession, or receipt of the stolen money, or a combination of these theories.⁵ But if the jury convicted defendant of the crime of RCSP in whole or in part on the basis of concealment of the stolen cash long after the larceny was completed, which is certainly possible if not likely in light of the evidence and the prosecution's closing argument, the majority's finding of a double jeopardy violation effectively vacates convictions that were supported by a theory—post-larceny concealment of the stolen cash—that did not trigger double jeopardy protection. While a double jeopardy infringement warranting reversal might very well be found if the jury convicted defendant of RCSP on the basis of possessing or receiving the stolen cash and not concealment, the same is not true in relation to an RCSP conviction predicated on post-larceny concealment of the stolen money because that crime had yet to occur when the offense of larceny had been completed. The “act” of stealing the money was separate and distinct from the subsequent “act” of concealing the cash; they were not the “same act.”⁶ I agree with the following position adopted by the Texas appellate courts as set forth in Langs v State, 183 SW3d 680, 687 (Tex Crim App, 2006):

[W]e [have] reasoned that, when separate theories for an offense are issued to the jury disjunctively, a double jeopardy violation is not clearly apparent on the face of the record if one of the theories charged would not constitute a double jeopardy violation and there is sufficient evidence to support that valid theory. The fact that the jury's verdict could have relied on a theory that would violate the Double Jeopardy Clause, is not sufficient to show a constitutional violation clearly apparent on the face of the record. [Quotation marks and citation omitted.]

In this case, there was more than sufficient evidence to convict defendant of RCSP on the post-larceny concealment theory proffered by the prosecution, which, in my opinion, did not result in a double jeopardy violation. The majority necessarily and implicitly finds a double jeopardy violation meriting the vacation of convictions on the basis of an assumption that the jury did not convict defendant of RCSP under the concealment theory framed by the prosecutor, even though that theory was the focus of the prosecution's RCSP closing argument and, again, patently supported by the evidence. And then the majority compounds that error by concluding that trial counsel's performance was deficient because of a failure to raise the double jeopardy argument. That analysis and ruling are much too tenuous given the existing record.

Because the jury may have convicted defendant in whole or in part of RCSP on the post-larceny concealment theory, I conclude that the record does not support vacating the RCSP or larceny conviction, or the related conspiracy convictions, on double jeopardy grounds. Contrary to the majority's holding, a defendant can be convicted of larceny and RCSP without offending the Double Jeopardy Clauses of the Michigan and federal constitutions where the RCSP conviction is based on the theory that the defendant engaged in acts to conceal the stolen property after earlier having completed the theft of the property. And counsel does not render ineffective assistance by failing to raise a futile or meritless objection or issue. See People v Putman, 309 Mich App 240, 245; 870 NW2d 593 (2015). Moreover, on the record before us, I cannot conclude that trial counsel's performance was deficient and fell below an objective of reasonableness. See Toma, 462 Mich at 302.

The majority states that it views the reasoning in People v Johnson, 176 Mich App 312; 439 NW2d 345 (1989), “as sound, and [that] we reaffirm its conclusion that the [L]egislature did not intend for cumulative punishments” in relation to the offenses of RCSP and larceny. In Johnson, the Court's full recitation of the facts was as follows:

Defendant's convictions arose out of his theft of fourteen shirts from a store in February of 1987. Defendant ran into the store, snatched the shirts from a rack, and ran back out and into a waiting car. Police stopped defendant and his driver later that day. [Id. at 313.]

The Johnson panel indicated that its analysis required an inquiry into “whether the Legislature intended to authorize multiple punishment[s] under [the] different statutes for a single criminal transaction.” Id. The Court ruled:

Each statute prohibits conduct which violates the same social norm: theft of property. Although one statute prohibits the actual theft and the other prohibits reaping the fruits by buying, receiving, possessing, or concealing stolen property, each statute operates so as to discourage the theft of property, although in different manners. Thus, we must conclude that the Legislature did not intend to provide for multiple punishment under both these statutes.

* * *

We conclude that the Legislature did not intend to authorize punishment under both these statutes for a single criminal act. Defendant's multiple convictions for this single theft violate the constitutional prohibition against double jeopardy. In view of this conclusion, we vacate defendant's conviction and sentence on the charge of possession of stolen property under MCL 750.535[.] [Id. at 314-315.]

Johnson is distinguishable because it spoke of “single” criminal transactions or acts and, as I stated earlier, defendant's actions here in concealing the money were separate and distinct from his much-earlier act involving the larcenous taking of money. Indeed, there is no indication that the defendant in Johnson concealed the stolen shirts or that the prosecution even pursued a theory or made an accusation that the defendant had concealed the shirts.⁷ Moreover, Johnson does not constitute binding precedent, MCR 7.215(J)(1), and I do not find it persuasive for our purposes because it did not take into consideration the subtleties created by the different theories that can be charged or argued by a prosecutor under MCL 750.535.

Additionally, the reasoning in Johnson that the Legislature did not intend multiple punishments simply because the statutes both generally addressed the “theft” of property is legally questionable. First, the Johnson panel did not state whether the legislative intent was clearly indicated, which assessment is required by Supreme Court precedent. See Miller, 498 Mich at 18 (multiple punishments for the same offense violate double jeopardy when “the Legislature expresses a clear intention in the plain language of a statute to prohibit multiple punishments”). Second, as but one example, convictions for armed robbery and bank robbery arising out of the same incident are not barred by double jeopardy protections, even though both offenses involve “theft.” See People v Ford, 262 Mich App 443, 460; 687 NW2d 119 (2004) (“[N]either the Double Jeopardy Clause of the United States Constitution nor the Double Jeopardy Clause of the Michigan Constitution precludes defendant's conviction and sentence for both bank robbery and armed robbery arising out of the same incident.”). With respect to legislative intent, I see nothing in the two statutes at issue, MCL 750.356 and MCL 750.535, that, pertinent to this case, “specifically authorizes cumulative punishment,” or that “expresses a clear intention in the plain language of [the] statute[s] to prohibit multiple punishments[.]” Miller, 498 Mich at 18 (quotation marks, citations, and brackets omitted).

After concluding that the Legislature did not intend for multiple punishments in regard to convictions for larceny of property and RCSP, the majority posits that it is next necessary to apply the abstract-legal-elements test because the Johnson panel did not do so given that it was decided before the test was adopted by our Supreme Court. In Miller, 498 Mich at 19, the Supreme Court defined the abstract-legal-elements test:

This test focuses on the statutory elements of the offense to determine whether the Legislature intended for multiple punishments. Under the abstract legal elements test, it is not a violation of double jeopardy to convict a defendant of multiple offenses if each of the offenses for which defendant was convicted has an element that the other does not. This means that, under the ․ test, two offenses will only be considered the “same offense” where it is impossible to commit the greater offense without also committing the lesser offense. [Quotation marks, citations, and ellipses omitted.]

I respectfully disagree with the majority's analysis because caselaw provides that once it is determined that the Legislature clearly intended to either authorize or prohibit multiple punishments, the analysis must stop, absent the need to apply the abstract-legal-elements test. In People v Wafer, 509 Mich 31, 38-39; 983 NW2d 315 (2022), our Supreme Court observed:

[W]e set forth a two-part test to determine when multiple punishments are, or are not, permitted. The first step is to look to the ordinary meaning of the statute. If the Legislature has clearly indicated its intent with regard to the permissibility of multiple punishments, the inquiry ends here. The touchstone of legislative intent is the statute's language, and we accord clear and unambiguous language its ordinary meaning. However, if the intent is not apparent from the text, Michigan courts apply the abstract-legal-elements test. [Quotation marks, citations, and brackets omitted; emphasis added.]

Both Miller and Wafer expressed that the Legislature's intent is to be evaluated with respect to both the authorization of and the prohibition against cumulative or multiple punishments, and the abstract-legal-elements test is only analyzed if clear legislative intent cannot be discerned one way or the other. Wafer, 509 Mich at 38; Miller, 498 Mich at 18. In Miller, the Court determined that the Legislature had clearly intended to prohibit multiple punishments under the statutory provisions in dispute, and the Court therefore did not apply the abstract-legal-elements test. Miller, 498 Mich at 25-26.

Accordingly, after determining that the Legislature did not intend multiple punishments for the crimes of larceny and RCSP, the majority's analysis should have ended without consideration and application of the abstract-legal-elements test. The majority opinion incorrectly suggests that even when legislative intent can be ascertained, the abstract-legal-elements test must still be analyzed. I also note that the majority concludes that the Legislature “did not intend for cumulative punishments,” but as stated in Wafer, we are required to assess whether the Legislature has “clearly indicated its intent.” Wafer, 509 Mich at 39 (emphasis added).

With respect to the majority's application of the abstract-legal-elements test, it concludes “that it is not possible for a person to be guilty of larceny without also being guilty of receiving or concealing stolen property; therefore, the same act cannot give rise to convictions for both crimes.”⁸ While it is arguable that one cannot commit a larceny without committing the offense of RCSP because merely possessing stolen property suffices for a conviction under MCL 750.535(1), the crime of larceny can be committed without “concealing” pilfered property. For example, if, with the requisite intent and without consent, an individual grabbed an unattended purse belonging to another and openly walked away with it and was then caught, there would be a larceny yet no basis for an RCSP conviction predicated on concealment. In a somewhat similar vein, a defendant can be guilty of merely possessing, receiving, or concealing stolen property without having committed the underlying crime of larceny in regard to that property. The point of my discussion is that when a prosecutor proceeds on a theory that a defendant stole property and then subsequently concealed the property, the crimes of larceny and RCSP each have elements that the other does not—taking or stealing property and concealing stolen property. This creates a problem with the majority's application of the abstract-legal-elements test to find a double jeopardy violation that warrants vacating any conviction.

Respectfully, the primary flaw in the majority's resolution of the double jeopardy issue is the failure to consider that the crime of RCSP can be based on concealment of stolen property that took place long after the property was stolen, which theory was argued by the prosecution at trial and supported by the evidence yet disregarded by the majority in its opinion.

III. VALIDITY OF THE SEARCH WARRANT

I generally agree with the majority's recitation of the law regarding the search of a cell phone pursuant to a search warrant and the principles regarding the “particularity” requirement of the Fourth Amendment. In People v Hughes, 506 Mich 512, 537-539; 958 NW2d 98 (2020), the Michigan Supreme Court explained:

This Court has yet to specifically address the Fourth Amendment requirements for a search of digital data from a cell phone authorized by a warrant. In considering this issue, we are guided by two fundamental sources of relevant law: (a) the Fourth Amendment's “particularity” requirement, which limits an officer's discretion when conducting a search pursuant to a warrant and (b) [the] recognition of the extensive privacy interests in cellular data. In light of these legal predicates, we conclude that as with any other search conducted pursuant to a warrant, a search of digital data from a cell phone must be “reasonably directed at uncovering” evidence of the criminal activity alleged in the warrant and that any search that is not so directed but is directed instead toward finding evidence of other and unrelated criminal activity is beyond the scope of the warrant.

The Fourth Amendment requires that search warrants “particularly describ[e] the place to be searched, and the persons or things to be seized.” US Const, Am IV. A search warrant thus must state with particularity not only the items to be searched and seized, but also the alleged criminal activity justifying the warrant. ․ That is, some context must be supplied by the affidavit and warrant that connects the particularized descriptions of the venue to be searched and the objects to be seized with the criminal behavior that is suspected, for even particularized descriptions will not always speak for themselves in evidencing criminality. ․ [Quotation marks, citations, and emphasis omitted; second alteration in original.]

The manifest purpose of the particularity requirement is to prevent law enforcement from conducting general searches. Id. at 539. The particularity requirement guarantees that a search will be carefully tailored to its justifications by limiting the authorization to search to the specific areas and things for which there existed probable cause to search. Id. The requirement is meant to prevent wide-ranging exploratory searches that the Framers intended to prohibit. Id.

In this case, the search warrant indicated that it pertained to defendant's cell phone that had been seized when he was arrested, and it described the data, materials, and information subject to search and seizure as follows:

Any and all records or documents* pertaining to the investigation of Larceny in a Building and Safe Breaking. As used above, the term records or documents includes records or documents which were created, modified or stored in electronic or magnetic form and any data, image, or information that is capable of being read or interpreted by a computer. In order to search for such items, searching agents may seize and search the following: cellular devices; Any physical keys, encryption devices and similar physical items that are necessary to gain access to the cellular device to be searched or are necessary to gain access to the programs, data, applications and information contained on the cellular device(s) to be searched; Any passwords, password files, test keys, encryption codes or other computer codes necessary to access the cellular devices, applications and software to be searched or to convert any data, file or information on the cellular device into a readable form; This shall include thumb print and facial recognition and or digital PIN passwords, electronically stored communications or messages, including any of the items to be found in electronic mail (“e-mail”). Any and all data including text messages, text/picture messages, pictures and videos, address book, any data on the SIM card if applicable, and all records or documents which were created, modified, or stored in electronic or magnetic form and any data, image, or information that is capable of being read or interpreted by a cellular phone or a computer.

The majority rules that “this was a general warrant that gave the police license to search everything on defendant's cell phone in the hopes of finding anything, but nothing in particular, that could help with the investigation.” The majority further concludes that the search “warrant did not place any limitations on the permissible scope of the search of defendant's phone.”

I do not agree with this construction of the search warrant in light of the introductory sentence, which, again, provided for the search and seizure of “[a]ny and all records or documents pertaining to the investigation of Larceny in a Building and Safe Breaking.” This opening sentence provided context for all that followed in the paragraph, necessarily placing limitations and parameters on the nature and scope of the information and data that could be sought or retrieved by law enforcement when searching the cell phone's digital record. Indeed, the second sentence of the search warrant began, “As used above, the term records or documents includes ․” (Emphasis added.) This language necessarily pulled all of the subsequent references in the paragraph to data, e-mails, text messages, and other electronic information into the introductory sentence and its confinement to the investigation of larceny and safe breaking. The search warrant supplied context connecting the particularized description of the venue to be searched, i.e., the cell phone, and the data and information to be seized with the larcenous, safe-breaking criminal conduct that was suspected. See Hughes, 506 Mich at 538. The search warrant was not directed toward finding evidence of other or unrelated criminal activity. Id.

The majority acknowledges the search warrant's opening sentence but then states that “this small guardrail was negated by the ensuing instruction to search for such items by searching and seizing the entirety of the phone's contents.” For the reasons I noted above, the majority too easily dispenses of the first sentence of the warrant. The language was not a small guardrail; rather, the sentence plainly set forth the boundaries of the entire warrant. The majority cites nonbinding opinions from other jurisdictions regarding cell-phone search warrants in which the courts found that there was a lack of compliance with the particularity requirement of the Fourth Amendment. We are compelled, however, to comply with Michigan precedent, and in Hughes, 506 Mich at 552-554, our Supreme Court held:

The ultimate holding of this opinion is simple and straightforward—a warrant to search a suspect's digital cell-phone data for evidence of one crime does not enable a search of that same data for evidence of another crime without obtaining a second warrant. Nothing herein should be construed to restrict an officer's ability to conduct a reasonably thorough search of digital cell-phone data to uncover evidence of the criminal activity alleged in a warrant, and an officer is not required to discontinue a search when he or she discovers evidence of other criminal activity while reasonably searching for evidence of the criminal activity alleged in the warrant. However, respect for the Fourth Amendment's requirement of particularity and the extensive privacy interests implicated by cell-phone data ․ requires that officers reasonably limit the scope of their searches to evidence related to the criminal activity alleged in the warrant and not employ that authorization as a basis for seizing and searching digital data in the manner of a general warrant in search of evidence of any and all criminal activity. We hold that, as with any other search, an officer must limit a search of digital data from a cell phone in a manner reasonably directed to uncover evidence of the criminal activity alleged in the warrant.

In this case, the search warrant, as I construe it, was consistent with the directives set forth by the Hughes Court—it limited the extent of the search of defendant's cell phone by the police to data and information related to the acts of larceny and safe breaking.⁹ The search warrant did not authorize the police to search for evidence of any and all criminal activity, and nothing seized by law enforcement was used to charge defendant with crimes unrelated to the theft of Billings's money.

The majority takes particular exception with the fact that the search warrant encompassed photographs and videos, indicating that there was “no evidence suggesting that these files would yield anything relevant[.]” As reflected in the search warrant affidavit, the police had information that defendant and Brandie DeGroff had stolen the money out of Billings's safes and were living lavishly on the cash. I believe that it would certainly be reasonable for the police to have believed that photos or videos on defendant's cell phone might lend support for those averments. The fact that there were no such photos or videos did not render the search warrant constitutionally defective. “Courts should ․ keep in mind that in the process of ferreting out incriminating digital data it is almost inevitable that officers will have to review some data that is unrelated to the criminal activity alleged in the authorizing warrant.” Hughes, 506 Mich at 547. “So long as it is reasonable under all of the circumstances for officers to believe that a particular piece of data will contain evidence relating to the criminal activity identified in the warrant, officers may review that data[.]” Id.

Nevertheless, assuming that the search warrant was constitutionally defective by authorizing the search of photos and videos on defendant's cell phone, as well as other data except for text messages, the exclusionary rule would not require us to bar the admission of the text messages. The United States Court of Appeals for the Sixth Circuit has stated that “infirmity due to overbreadth does not doom the entire warrant; rather, it requires the suppression of evidence seized pursuant to that part of the warrant, but does not require the suppression of anything described in the valid portions of the warrant[.]” United States v Greene, 250 F3d 471, 477 (CA 6, 2001) (quotation marks, citation, and ellipses omitted); see also United States v Blakeney, 942 F2d 1001, 1027 (CA 6, 1991) (“Our finding of overbreadth regarding the use of the generic term ‘jewelry’ does not require suppression of all of the items seized pursuant to the warrant. We believe the proper approach to this dilemma is to sever the infirm portion of the search warrant from the remainder which passes constitutional muster.”). “When a warrant is severed (or redacted) the constitutionally infirm portion—usually for lack of particularity or probable cause—is separated from the remainder and evidence seized pursuant to that portion is suppressed; evidence seized under the valid portion may be admitted.” United States v George, 975 F2d 72, 79 (CA 2, 1992).¹⁰

With respect to the text messages, and regardless of the other data and information mentioned in the search warrant, I simply cannot find a violation of the particularity requirement of the Fourth Amendment. The search warrant authorized the search for text messages on defendant's cell phone pertaining to the investigation of the larceny and safe breaking in which thousands of dollars were stolen. The search warrant affidavit contained numerous averments regarding defendant and DeGroff and their joint connection to the crimes and their spending spree thereafter, and the affiant averred that based on his “training and experience, it is known that mobile communication devices are often used to plan, commit, and conceal criminal activity and evidence.” Commonsense and reasonable inferences arising from the averments dictated that the couple likely had cell-phone communications by text or otherwise that touched on the crimes and the pair's use of the cash that was stolen from Billings.¹¹ See People v Nunez, 242 Mich App 610, 612-613; 619 NW2d 550 (2000) (search warrants and underlying affidavits must be read in a commonsense and realistic manner); People v Sloan, 206 Mich App 484, 486; 522 NW2d 684 (1994) (search warrant affidavits must contain averments that justify any inferences). This issue is all about the text messages, and even assuming a constitutional infirmity concerning almost all the data and information referenced in the search warrant, if the warrant was constitutionally sound in regard to the text messages, which I believe is the case, severance should take place and the exclusionary rule should not be applied to preclude the admission of the text messages.

Next, assuming that the search warrant was constitutionally defective in total, I would find that the good-faith exception to the exclusionary rule would apply. In People v Goldston, 470 Mich 523, 525-526; 682 NW2d 479 (2004), our Supreme Court held:

In this case, we must determine whether to recognize a “good-faith” exception to the exclusionary rule. In United States v Leon, 468 US 897; 104 S Ct 3405; 82 L Ed 2d 677 (1984), the United States Supreme Court interpreted US Const, Am IV and adopted a good-faith exception to the exclusionary rule as a remedy for unreasonable searches and seizures. Under Leon, the exclusionary rule does not bar the admission of evidence seized in reasonable, good-faith reliance on a search warrant ultimately found to have been defective. The exclusionary rule in Michigan is a judicially created remedy that is not based on the text of our constitutional search and seizure provision, Const 1963, art 1, § 11. Indeed, records of the 1961 Constitutional Convention evidence an intent on behalf of the people of Michigan to retreat from the judge-made exclusionary rule consistent with the United States Supreme Court's interpretation of the Fourth Amendment in Leon. We therefore adopt the good-faith exception to the exclusionary rule in Michigan. The purpose of the exclusionary rule is to deter police misconduct. That purpose would not be furthered by excluding evidence that the police recovered in objective, good-faith reliance on a search warrant.

In People v Czuprynski, 325 Mich App 449, 472; 926 NW2d 282 (2018), this Court discussed the circumstances in which the good-faith exception does not apply, stating:

Reliance on a warrant is reasonable even if the warrant is later invalidated for lack of probable cause, except under three circumstances: (1) if the issuing magistrate or judge is misled by information in the affidavit that the affiant either knew was false or would have known was false except for his or her reckless disregard of the truth; (2) if the issuing judge or magistrate wholly abandons his or her judicial role; or (3) if an officer relies on a warrant based on a “bare bones” affidavit so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable.

The majority holds “that the warrant in this specific case was so facially deficient by virtue of its failure to particularize the places to be searched and things to be seized that the executing officers could not have reasonably presumed it to be valid.”

For the reasons stated earlier, I conclude that the search warrant was not facially deficient and that the particularity requirement of the Fourth Amendment was not violated. Therefore, in my opinion, there is no basis to find that law enforcement acted in any manner other than good faith. The police recovered the text messages in objective, good-faith reliance on a search warrant that was confined to seeking evidence pertaining to defendant's participation, if any, in the acts of larceny and safe breaking. There was no police misconduct; therefore, application of the exclusionary rule serves no valid purpose.

Finally, assuming that the text messages extracted from defendant's cell phone were inadmissible under the exclusionary rule, defendant has not established the requisite prejudice in light of the overwhelming untainted evidence of guilt. Carbin, 463 Mich at 600. The following evidence was presented at trial: defendant and DeGroff had direct access to the safes; the balance in the couple's joint bank account dramatically increased after the larceny absent explanation for the funds; defendant quit his job following the theft indicating that he “ran across some money”; defendant and DeGroff began making costly purchases after the larceny; the couple started regularly going out to dinner and the casino following the theft, spending enormous sums of money; items belonging to victim Billings other than the money were found in defendant's home; and the amounts spent by defendant and DeGroff corresponded to the sums stolen from Billings. This evidence constituted overwhelming untainted evidence of guilt. Defendant has not shown the existence of a reasonable probability that, but for counsel's presumed error, the result of the proceedings would have been different. Id. While the text messages undoubtedly strengthened the prosecution's case, they simply made an overwhelming case of guilt an insurmountable case of guilt. My confidence in the outcome has not been undermined. Id. I cannot conceive of any possibility that the jury would have acquitted defendant absent the text messages.

IV. CONCLUSION

I conclude that the record does not support the majority's determination that there was a double jeopardy violation that would warrant vacating some of defendant's convictions. Therefore, defendant's trial counsel did not render ineffective assistance by failing to raise a double jeopardy argument. I further conclude that the search warrant authorizing the search of defendant's cell phone did not violate the “particularity” requirement of the Fourth Amendment. To the extent that the search warrant satisfied the Fourth Amendment only with respect to retrieval of the text messages, the constitutionally infirm portion of the warrant could be severed, allowing admission of the text messages. Moreover, even were the search warrant constitutionally defective, the good-faith exception to the exclusionary rule would apply. Assuming that the text messages extracted from defendant's cell phone were inadmissible under the exclusionary rule, defendant has not established the requisite prejudice in light of the overwhelming untainted evidence of guilt. Thus, defendant's claim of ineffective assistance of counsel relative to his Fourth Amendment “particularity” argument cannot serve as a basis to reverse his convictions. Finally, in my view, none of defendant's appellate arguments left unaddressed by the majority merit reversal.¹² I would affirm defendant's convictions and sentences. Accordingly, I respectfully dissent.

FOOTNOTES

1.   I also note that the double jeopardy prohibition secured by the Fifth Amendment constitutes a fundamental constitutional right applicable to the states through the Fourteenth Amendment. Beck, 510 Mich at 11 n 1.

2.   In a jury trial, jeopardy generally attaches when the jurors are selected and sworn. Id.

3.   In his closing argument, the prosecutor contended:Now, the defendant, basically, commits this crime once he takes possession of Don's property. So at that point he's possessing stolen property knowing that it's stolen. But the defendant[ ] commits the crime in another way. Also, it has to be twenty thousand dollars or more. But the defendant also commits this crime in another way. We don't have to prove he committed it two ways, but he did, 'cause he concealed the stolen property, he concealed the stuff he stole from Don. Concealed means to hid[e], disguise, get rid of, or do any other act to keep the property from being discovered. And the defendant did that [in] all sorts of ways in this case. He got rid of it in all sorts of ways. He ran a bunch of it through the casino. He bought a pickup truck with it. He paid for the engagement ring on Brandy's finger with it. That's how he got rid of – concealed this, he converted it into other things: into gaming at the casino, into personal property, into rent payments, into all sorts of stuff.

4.   The jury was instructed consistently with M Crim JI 23.1.

5.   I recognize the likelihood that if the jury found that defendant had concealed the stolen money, it also found that defendant had received and possessed the cash because concealment would be difficult to accomplish without first having received and possessed the property.

6.   Of course, concealment of stolen property can occur almost immediately after or hand-in-hand with a larceny, but in this case the prosecution pointed the jury to acts of concealment that took place well after the larceny had transpired.

7.   I note that the opinion in Johnson merely stated that the defendant had pleaded guilty to “possession of stolen property over $100.” Johnson, 176 Mich App at 313 (emphasis added).

8.   The majority appears to take the position that the offense of RCSP is a lesser offense of larceny of property (greater offense); however, both crimes are ten-year felonies. See MCL 750.356(2)(a) and MCL 750.535(2)(a).

9.   The majority discounts Hughes to a degree by asserting that Hughes dealt with the question whether the police in searching the entirety of a cell phone's contents acted within the scope of the search warrant, whereas in the instant case we are addressing whether the scope of the warrant was overly broad. Although this distinction is accurate, the Hughes Court's discussion setting the parameters of what the police can seek and seize when conducting a search of a cell phone necessarily translates to setting the parameters required of a search warrant regarding a cell phone.

10.   In United States v Cook, 657 F2d 730, 735 (CA 5, 1981), the United States Court of Appeals for the Fifth Circuit observed:We ․ hold that in the usual case the district judge should sever the infirm portion of the search warrant from so much of the warrant as passes constitutional muster. Items that were not described with the requisite particularity in the warrant should be suppressed, but suppression of all of the fruits of the search is hardly consistent with the purposes underlying exclusion. Suppression of only the items improperly described prohibits the Government from profiting from its own wrong and removes the court from considering illegally obtained evidence. Moreover, suppression of only those items that were not particularly described serves as an effective deterrent to those in the Government who would be tempted to secure a warrant without the necessary description. [Citations omitted.]

11.   The concurrence argues that the search warrant affidavit failed the nexus requirement for search warrants. Quoting three of 24 averments, my concurring colleague maintains that “[n]one of these paragraphs discuss how, based on the affiant's training and experience, cell phone data impacts investigations involving larceny or safe cracking.” This argument essentially gives no weight to the 21 other averments in the affidavit, fails to appreciate the substance of those assertions that discussed defendant and DeGroff's joint connection to the crimes and expenditures, and pays no heed to the commonsense inference that the couple likely communicated by phone, some of which communications may have entailed texts or e-mails that provided some evidence or insight regarding the crimes.

12.   For purposes of my dissent, it is unnecessary to engage in an analysis of defendant's arguments that the majority did not need to reach. I have examined these arguments and conclude that none of them merit reversal.

James Robert Redford