Search & seizure; Motion to suppress tether location data; Consent exception to the warrant requirement; Good-faith exception to the exclusionary rule; Herring v United States

The court concluded that the trial court erred in finding the consent exception to the warrant requirement applied, and that remand was required “for an evidentiary hearing to determine whether the good-faith exception” to the exclusionary rule did. It retained jurisdiction. Defendant was convicted of AWIM, felony-firearm, first-degree home invasion, and intentional discharge of a firearm at a dwelling. The court found that the case boiled “down to two questions. First, whether defendant’s failure to immediately return his tether after his domestic violence case was dismissed reflects his implicit consent to the government’s continued monitoring of his whereabouts. Second, if the consent exception is inapplicable, whether the good faith exception to the exclusionary rule applies.” The court was “unpersuaded by the prosecutor’s assertion that defendant’s continued wearing of the tether constitutes consent.” His signed tether agreement expressly authorized “members of the Electronic Monitoring Unit of the Wayne County Sheriff’s Department and other police officers, they may designate, to enter and search my/our residence and/or vehicle(s) during the entire duration I am in the Electronic Monitoring Program, regardless of day or time of search.” It also provided “that defendant must ‘allow the Electronic Monitoring Officers to enter the residence and make household checks as needed for the duration of the program,’ and notes that defendant ‘expressly waive[d his] 4th Amendment rights during the time [he was] in the Electronic Monitoring Program.’” The court found that the “terms of the agreement clearly contemplate that defendant’s consent to warrantless searches of his person and property hinged on his continued participation in the Electronic Monitoring Program, not on his continued wearing of the tether.” As the prosecution conceded, he “was not still subject to the conditions of his pretrial release” as of 10/4/23. Thus, any consent he initially gave “expired by the time officers accessed his tether location data regarding the [10/4/23] shooting. Moreover, his continued wearing of the tether was ‘no more than acquiescence to a claim of lawful authority,’ given that he was still responsible for maintaining and returning the equipment.” As to the good-faith exception to the exclusionary rule, the trial court denied his motion based on Herring. The court noted that “Herring did not establish an all-purpose ‘recklessness or gross negligence’ standard that must be met before unlawfully obtained evidence is subject to the exclusionary rule. [It] simply recognized that, when police reasonably and in good faith rely on a third party, there is no culpable or wrongful conduct to deter.” The record was “unclear whether law enforcement officers in this case reasonably relied on the terms of defendant’s tether agreement—authorizing warrantless searches of [his] person and property—when conducting the challenged search.” Because evidence of their “actual knowledge is necessary to determine whether they were acting in good faith at the time of the contested search, further factual development on this issue is necessary.”

Habeas corpus; Ineffective assistance of counsel; Strickland v Washington; The Antiterrorism & Effective Death Penalty Act (AEDPA); Requirements for state prisoners; 28 USC §§ 2254(d)(1) or (2); Whether AEDPA’s standard of review violates Article III of the Constitution; Loper Bright Enters v Raimondo; Whether the state court’s decisions unreasonably applied Supreme Court precedent or turned on an unreasonable determination of the facts; Defense based on challenging whether oxycodone was a “substantial factor” in the victim’s death; Failure to investigate an alternative defense; Failure to call an expert at trial to support the defense; The deficient performance & prejudice prongs of Strickland

[This appeal was from the ED-MI.] The court held that AEDPA’s standard of review does not violate Article III. It also held that petitioner-DeBruyn was not entitled to a writ of habeas corpus where he failed to show that the state court’s rulings rejecting his ineffective assistance of counsel claims “unreasonably applied Supreme Court precedent or turned on an unreasonable determination of the facts.” A state court jury in Michigan convicted DeBruyn of delivering oxycodone to his friend (G), resulting in her death. His motion for a new trial based on ineffective assistance of counsel was denied, and the appellate courts rejected his claims on the merits. He argued the same claims in his habeas petition—his attorneys were ineffective for failing to (1) investigate an acetaminophen-based defense before trial and (2) call an expert witness. The district court denied his petition. On appeal, the court first rejected his argument that AEDPA’s standard of review violates Article III. It held that “Loper Bright nor DeBruyn’s argument about transferring federal judicial power to state courts prohibit Congress from setting standards for when federal courts may issue the writ of habeas corpus to state prisoners.” As to the merits, it found that “a fairminded jurist could conclude that DeBruyn’s lawyers chose to pursue a reasonable defense strategy that made any investigation into an acetaminophen-based defense unnecessary.” Given the strong evidence that G “took Percocet, a fairminded jurist could conclude that DeBruyn’s lawyers ‘ma[de] a reasonable decision’ about how to defend their client. [They] challenged the second premise of the State’s case—that oxycodone was a substantial factor in [G’s] death.” The court concluded he could not “show that the state court’s performance ruling amounted to an unreasonable application of clearly established Supreme Court precedent.” As to the failure to call an expert, this claim failed “twice over. First, a fairminded jurist could conclude that at least one competent lawyer would have chosen to present DeBruyn’s defense through cross examination of the State’s experts.” Secondly, the court found “a fairminded jurist could conclude that DeBruyn’s lawyers did not perform deficiently in presenting their defense through cross-examination of the State’s experts.” Thus, the state court “reasonably determined that [they] performed competently in” doing so. The court also held as to both claims that he could not satisfy the prejudice requirement. Affirmed.

Auto negligence; No-fault noneconomic damages; Serious impairment of body function; “Objectively manifested” impairment; MCL 500.3135(1) & (5)(a); McCormick v Carrier

The court held that plaintiff failed to create a question of fact that she suffered an “objectively manifested” impairment as required to recover noneconomic damages for auto negligence under Michigan’s no-fault threshold. Plaintiff was involved in a collision while attempting to push a disabled vehicle. She later pursued “excess economic/non-economic damages” under the No-Fault Act while also asserting negligence-based theories against the truck driver and trucking company. The trial court granted summary disposition on the serious-impairment threshold. On appeal the court emphasized that MCL 500.3135(5)(a) requires an impairment that is “objectively manifested,” meaning it is “observable or perceivable from actual symptoms or conditions by someone other than the injured person.” Applying McCormick, the court stressed that “the proper inquiry is whether the impairment is objectively manifested, not the injury or its symptoms,” and that “an impairment is distinct from an injury” because the focus “is not on the injuries themselves, but how the injuries affected a particular body function.” The court rejected plaintiff’s reliance on imaging findings like “a disc bulge and spinal stenosis,” explaining these were “at best” proof of an injury rather than proof that an impairment was observable to others. It also found plaintiff’s restriction paperwork largely listed diagnoses such as “C-L RADICULOPATHY” without explaining objective findings tied to functional impairment, and it noted the records simultaneously stated there was “currently no electrodiagnostic evidence” of radiculopathy. The court contrasted plaintiff’s proof with cases where plaintiffs presented medical and lay testimony showing observable functional deficits, and it concluded plaintiff offered no comparable evidence showing her claimed limitations were “observed by others.” Affirmed.

Mandatory PIP coverage; MCL 500.3101(1); Priority of PIP benefits; MCL 500.3114(1); Contract provisions conflicting with statute; Meemic Ins Co v Fortson; “Persons, not motor vehicles” principle; MemberSelect Ins Co v Hartford Accident & Indem Co

The court held that defendant-Acceptance could not limit statutorily mandated PIP coverage to accidents involving only the specifically listed “covered auto” because MCL 500.3114(1) provides that a PIP policy “applies to accidental bodily injury to the person named in the policy,” and the conflicting contractual limitation was invalid and required reformation. Plaintiff was injured in an accident in Nevada while driving a friend’s car, and he sought Michigan PIP benefits. Given that his personal auto policy had been canceled, he pursued benefits under a non-trucking “bobtail” policy he purchased from Acceptance for his tractor. Acceptance denied the claim on the ground that the policy applied “only to the Specified ‘Auto’ or ‘Autos’ below,” which listed only the tractor. The trial court agreed, reasoning plaintiff was “‘supposed to get the PIP’” from another carrier and that “‘coverage simply does not apply’” because the accident did not involve the tractor. It further stated that “‘insurers can sell insurance policies that do not include mandatory no-fault coverages.’” On appeal, the court held that PIP is “mandatory,” that the No-Fault Act is “the ‘rule book,’” and that “‘[w]hen a contractual provision in an insurance policy conflicts with a statute, the contractual provision is invalid and the contract must be reformed.’” In MemberSelect, the court rejected the insurer’s attempt to “‘designat[e] autos instead of people for PIP coverage,’” because people “‘not motor vehicles, are insured against PIP loss,’” and the Legislature did not create “a ‘commercial policy’ exception to MCL 500.3114(1).” The court acknowledged the insurer’s reliance on an unpublished bobtail-policy case but explained it was decided before MemberSelect and did not control where the insurer sold a policy that included PIP coverage that must conform to the statute. Reversed and remanded.

Auto negligence; No-fault noneconomic damages; Serious impairment of body function; “Objectively manifested” impairment; MCL 500.3135(1) & (5)(a); McCormick v Carrier

The court held that plaintiff failed to create a question of fact that she suffered an “objectively manifested” impairment as required to recover noneconomic damages for auto negligence under Michigan’s no-fault threshold. Plaintiff was involved in a collision while attempting to push a disabled vehicle. She later pursued “excess economic/non-economic damages” under the No-Fault Act while also asserting negligence-based theories against the truck driver and trucking company. The trial court granted summary disposition on the serious-impairment threshold. On appeal the court emphasized that MCL 500.3135(5)(a) requires an impairment that is “objectively manifested,” meaning it is “observable or perceivable from actual symptoms or conditions by someone other than the injured person.” Applying McCormick, the court stressed that “the proper inquiry is whether the impairment is objectively manifested, not the injury or its symptoms,” and that “an impairment is distinct from an injury” because the focus “is not on the injuries themselves, but how the injuries affected a particular body function.” The court rejected plaintiff’s reliance on imaging findings like “a disc bulge and spinal stenosis,” explaining these were “at best” proof of an injury rather than proof that an impairment was observable to others. It also found plaintiff’s restriction paperwork largely listed diagnoses such as “C-L RADICULOPATHY” without explaining objective findings tied to functional impairment, and it noted the records simultaneously stated there was “currently no electrodiagnostic evidence” of radiculopathy. The court contrasted plaintiff’s proof with cases where plaintiffs presented medical and lay testimony showing observable functional deficits, and it concluded plaintiff offered no comparable evidence showing her claimed limitations were “observed by others.” Affirmed.

Tax foreclosure; Motions to recover surplus proceeds under MCL 211.78t(4); Remand with instructions to enter a judgment consistent with In re Muskegon Cnty Treasurer for Foreclosure; Compliance with the court’s instructions

Concluding that the case was over when it previously left the court, the court held that the trial court did not err in complying with its instructions on remand to enter judgment consistent with Muskegon Treasurer. Petitioner-county treasurer “sold claimant’s property at auction to satisfy his tax debt, and claimant untimely filed Form 5743 of his notice of intent to claim an interest in the surplus proceeds pursuant to MCL 211.78t. Claimant moved in the trial court to reopen the foreclosure and receive the surplus funds, and the trial court granted [his] motion to disburse the remaining proceeds.” In a prior appeal, the court “reversed and remanded ‘for the trial court to enter judgment consistent with Muskegon Treasurer.’” The trial court then dismissed the case. In this appeal, claimant asserted that it erred by doing so without addressing unresolved questions. But the court noted it “mandated that the trial court enter judgment consistent with Muskegon Treasurer. The trial court’s judgment in Muskegon Treasurer that was affirmed on appeal was the denial of the claimants’ motions to recover surplus proceeds under MCL 211.78t(4). [Its] mandate in this case was the same as Muskegon Treasurer. The trial court was ordered to enter judgment denying claimant’s motion to recover surplus funds consistent with Muskegon Treasurer, which does not leave room for arguments, including arguments for intervening caselaw and issues already decided in the first appeal.” Affirmed.

Tax foreclosure; Motions to recover surplus proceeds under MCL 211.78t(4); Remand with instructions to enter a judgment consistent with In re Muskegon Cnty Treasurer for Foreclosure; Compliance with the court’s instructions

Concluding that the case was over when it previously left the court, the court held that the trial court did not err in complying with its instructions on remand to enter judgment consistent with Muskegon Treasurer. Petitioner-county treasurer “sold claimant’s property at auction to satisfy his tax debt, and claimant untimely filed Form 5743 of his notice of intent to claim an interest in the surplus proceeds pursuant to MCL 211.78t. Claimant moved in the trial court to reopen the foreclosure and receive the surplus funds, and the trial court granted [his] motion to disburse the remaining proceeds.” In a prior appeal, the court “reversed and remanded ‘for the trial court to enter judgment consistent with Muskegon Treasurer.’” The trial court then dismissed the case. In this appeal, claimant asserted that it erred by doing so without addressing unresolved questions. But the court noted it “mandated that the trial court enter judgment consistent with Muskegon Treasurer. The trial court’s judgment in Muskegon Treasurer that was affirmed on appeal was the denial of the claimants’ motions to recover surplus proceeds under MCL 211.78t(4). [Its] mandate in this case was the same as Muskegon Treasurer. The trial court was ordered to enter judgment denying claimant’s motion to recover surplus funds consistent with Muskegon Treasurer, which does not leave room for arguments, including arguments for intervening caselaw and issues already decided in the first appeal.” Affirmed.

§ 19b(3)(j); Reasonable reunification efforts; Children’s best interests; Consideration of relative placement; In re Olive/Metts

While the court held that the trial court did not clearly err in finding that termination was warranted under § (j) and that reasonable reunification efforts were made, it vacated the best-interests determination due to the failure to consider the child’s relative placement. As to reasonable reunification efforts, “respondent-father did not even complete the psychological evaluation or parenting classes” to which he had agreed. At the disposition hearing, the DHHS confirmed that he had “‘not participated in any services leading up to this.’ Following the disposition hearing, the trial court ordered the DHHS to provide services. However, after the permanency planning hearing 43 days later, [it] then ordered that no more services be offered.” The court concluded that he did not “establish that the trial court clearly erred in finding that reasonable reunification efforts” were made. As to § (j), the trial court recognized respondent’s “history of ‘criminal behavior’ and the ‘uncertainty’ that it created in [the child’s] life.” It noted that, while respondent “clearly wanted the best for his child, considering his track record, there was no guarantee that [he] would ever comport his ‘behavior in a manner that’” allowed the child “‘to feel stable and steady.’ The trial court further noted that [his] instability posed a substantial likelihood of harm to” the child. It found that in light of respondent’s “‘convictions over the course of decades’ and recent conviction of felony surveilling an unclothed person, [the child] faced a reasonable likelihood of harm if returned to [his] care.” The court concluded that the record supported the trial court’s findings. But the trial court’s best-interest analysis lacked “any consideration as to relative placement. Two DHHS foster-care workers testified that [the child] was placed with the paternal aunt.” The trial court failed to acknowledge this placement in “making its best interest findings, much less acknowledge that this placement weighed against termination.” By itself, this error required “vacation of the best-interest determination.” Affirmed in part, vacated in part, and remanded. The court retained jurisdiction.

Reasonable reunification efforts; Aggravated circumstances; MCL 712A.19a(2)(a); “Child abuse” (MCL 722.638(1)(a)(iii)); Effect of a respondent’s mental health issues; The Americans with Disabilities Act (ADA); Suspension of parenting time under MCL 712A.13a(13); Children’s best interests; In re White

The court held that reasonable reunification efforts were not required under MCL 712A.19a(2)(a) in this case due to the existence of aggravated circumstances. And even if they were, “the trial court did not clearly err in finding” that they were made. It also found no error in the trial court’s suspension of both respondents’ parenting time under MCL 712A.13a(13), and concluded that it did not clearly err by finding termination was in the children’s best interests. Thus, the court affirmed the orders terminating their parental rights to their children. The DHHS sought termination of their “rights at the initial disposition under MCL 712A.19b(3)(k)(iii) for child abuse. The termination petition alleged respondents used a belt and a cord to whip the children on multiple occasions, with respondent-father admitting he most recently struck [one child] with a belt 16 times. Medical examinations revealed both children had numerous loop marks on their bodies in various stages of healing, along with long-lasting scars. Respondents pleaded no contest to these allegations, agreeing to their use for establishing the factual basis of their pleas.” Further, the trial court found proven statutory grounds for termination under § (k)(iii), “which amounts to a ‘judicial determination’ that respondents subjected the children to an aggravated circumstance under MCL 722.638(1)(a)(iii).” The court added that, despite “concluding that reasonable efforts were not required, the trial court repeatedly ordered DHHS to provide services at respondents’ request[.]” A caseworker (M) “testified that she would have provided service referrals, but respondents never asked. When [they] expressed concerns regarding transportation to parenting time, they were provided with gas cards, offered bus passes, and given the location of every free charging location in the area” for their electric car. M offered to refer the father “to an approved therapist, but [he] refused her offer. The trial court’s finding that reasonable efforts were made was not clearly erroneous.” As to his ADA argument, he “never asserted below that he needed ADA accommodations[.]” As to the children’s best interests, the record supported the trial court’s “conclusion that respondents traumatized” them and were not able to provide them permanency and stability, while the foster parents wanted to adopt them and would continue their therapy.

Termination under § 19b(3)(j); Reasonable reunification efforts; Child’s best interests

Holding that (1) § (j) existed, (2) DHHS made reasonable efforts to reunite respondent-father with the child-EY, and (3) termination of his parental rights was in EY’s best interests, the court affirmed. As to § (j), the court noted that during the lower court proceedings, respondent “was charged with three different criminal offenses and spent approximately five months in jail. While incarceration alone is insufficient to terminate parental rights, the circumstances involving at least one of [his] charges occurred while he was intoxicated. Respondent struggled with alcohol abuse throughout this proceeding and was diagnosed with alcohol-use disorder.” He also did not “benefit from his service plan, which included substance-abuse counseling, and continued to use alcohol.” Although respondent “claied to be sober while incarcerated, his ability to attain sobriety while incarcerated is not necessarily indicative of his ability to maintain sobriety outside of that controlled setting. [He] also failed to obtain and maintain suitable housing.” Moreover, the court noted that “he failed to complete domestic-violence counseling and failed to act appropriately during some visits with the child.” As to reasonable reunification efforts, the record showed he “failed to benefit from the services because substance abuse continued to be a concern, he struggled to provide age-appropriate care for EY, and he did not obtain housing.” Respondent argued “that his caseworkers should have provided him with more assistance, but he fail[ed] to indicate the additional services that petitioner should have provided and how such services would have assisted him in remedying his barriers to reunification. It [was] unclear whether the caseworkers confirmed that respondent could not participate in services while incarcerated.” However, the court noted that “the lower-court proceedings occurred over approximately two years, and respondent was incarcerated for only about five months of that time, leaving ample time for him to participate in services while not incarcerated. He nevertheless did not substantially comply with his service plan when he was not incarcerated. Accordingly, respondent has failed to establish plain error affecting his substantial rights.”

Request for a dimensional variance; Standard of review for Zoning Board of Appeals (ZBA) decisions; Competent, material, & substantial evidence; Authorized by law; MCL 125.3606(1); Zoning Ordinance (ZO) requirement that the practical difficulty not be self-created; ZO requirement that the owner show strict compliance will unreasonably prevent use or be unnecessarily burdensome; Requirement that the requested variance is the minimum necessary to do substantial justice; Crooked Laked Yacht Club (CLYC)

Concluding that defendant-ZBA’s findings did not show “that its decision was based on substantial evidence or proper application of the law, the” court held that the trial court did not err in reversing the ZBA’s decision denying plaintiff-CLYC’s request for a dimensional variance. The trial court granted the variance on appeal. Three standards in defendant-county’s ZO were at issue. Standard 1 required “that an applicant must meet to show that the proposed practical difficulty was not self-created[.]” The court found that in light of “where the clubhouse was located and the unique circumstances of the land where the patio was to be located—all of which predated the 25-feet zoning requirement—CLYC introduced substantial evidence in the record that this practical difficulty was not self-created. The building location and lot size were set before the ordinances were enacted. Based on these pre-existing conditions, if CLYC built a patio in the same size and location as requested, it necessarily would encroach on the waterfront setback. And CLYC introduced evidence that the patio had to be of that size and at that location. (Whether the evidence was, in fact, sufficient to show such necessity was subject to Standard 2.) Thus, in this respect, the ZBA decision for Standard 1 was based on neither sound application of the law nor competent, material, and substantial evidence.” As a result, the trial court did not err in finding “that, if the ZBA had reviewed the request as if the patio had not been built, the standard would have been met because of the grandfathered building, location, lot size, and configuration.” The record also indicated “that the ZBA failed to consider the second prong of Standard 2. . . . Standard 2 can be satisfied by showing either prong: (a) unreasonably prevent use, or (b) unnecessarily burdensome. Therefore, the ZBA’s findings on this standard did not represent a ‘reasonable exercise of discretion.’” Further, CLYC presented “substantial evidence that it would be unnecessarily burdensome to comply with the ordinance.” Finally, the court held that “the trial court properly analyzed the criteria when it found that Standard 3 was met” and correctly concluded “the ZBA’s decision on Standard 3 was not a reasonable exercise of discretion.” Affirmed.