Motion to suppress; Search & seizure; Warrantless search; People v Moorman; Consent; People v Mahdi; Coercion; People v Bolduc; Exclusionary rule; Fruit of the poisonous tree; People v Stevens; Bindover; People v Jenkins; Perjury; MCL 767A.9(1)(b); Motion to quash; MCR 6.110(H); Evidence of a victim’s death

The court held that the trial court erred by (1) denying defendant’s motion to suppress the search and seizure of his cell phone, and (2) binding him over “on a perjury charge under MCL 767A.9(1)(b) when no facts were presented to support the victim’s murder or death.” After he testified pursuant to a prosecutor’s investigative subpoena about a 1981 disappearance, the prosecutor seized his cell phone, and later charged him with perjury, as a third-offense habitual offender. On appeal, the court agreed with defendant that the trial court erred by denying his motion to suppress because his consent to the search and seizure of his cell phone was coerced. “The totality of the circumstances reflect that defendant did not voluntarily consent to the search and seizure of his cell phone. After the prosecutor finished questioning” him, she told him “they were ‘taking [his] phone.’” Before he consented, she told him “that: (1) she had probable cause to ‘just get the search warrant’; (2) defendant was ‘gonna give [his phone] to the detective’; (3) [he] did not ‘have a choice’ in whether he gave up his phone; and (4) [he] could not leave.” He only consented after she “told him that he would get his phone back ‘in a day’ if he consented, but that he would likely not get it back for about a week if she had to obtain a search warrant.” As such, the prosecutor’s statements that his “choice to consent was ‘totally up to [him]’ does not align with the interaction that actually took place.” In addition, while he “signed a consent form for the search,” it was signed just two minutes after the examination concluded. “Because defendant was told that he could not leave, that he did not have a choice in giving his phone up, and that he was going to give his phone to the detective, defendant’s consent was not ‘freely and voluntarily given’ under the totality of the circumstances, and the consent exception to the warrant requirement was not met.” The court also agreed with him that the prosecution could not prove he “made a false statement during the investigation of a homicide, a life offense, when no facts were presented to support that a murder, or even a death, occurred.” It found: (1) he was not limited to only one motion to quash; and (2) the district court never found he “made false statements ‘during the investigation of a crime punishable by imprisonment for life[.]’” Reversed in part and remanded.