Warrantless seizure of defendant’s cell phone; Scope of a search incident to arrest; “Dual purpose”; People v Giacalone; Defendant’s statement to police; Ineffective assistance of counsel; Prejudice; Motion to suppress; Failure to move to quash added charges or seek a preliminary exam; Failure to present potentially exculpatory financial documents & to prevent or minimize the introduction of damaging statements; Hearsay; MRE 804(b)(3); Evidence seized from execution of a search warrant for defendant’s house; Good-faith exception; Prosecutorial vindictiveness/added charges; Presumed vindictiveness theory; Double jeopardy; Judgment of sentence (JOS); Michigan Department of Corrections (MDOC)

On remand from the Supreme Court, the court held that the police were entitled to seize defendant’s cell phone as part of a search incident to his arrest, and that appellate relief was unwarranted as to his custodial statement claim. It rejected his prosecutorial vindictiveness argument, and his ineffective assistance of counsel claims. It also concluded that the good-faith exception to the exclusionary rule applied to the evidence seized from execution of the search warrant for his house. Thus, in accordance with the Supreme Court’s direction, the court vacated his convictions of receiving or concealing stolen property and conspiracy to commit that crime on double jeopardy grounds, remanded for the limited purpose of correcting his JOS and relaying the correct information to the MDOC, and otherwise affirmed. He was also convicted of safe breaking; larceny of property valued at $20,000 or more; larceny from a building; and conspiracy to commit those crimes. A jury found that defendant and his romantic partner “stole nearly $70,000 from their neighbor’s safe.” As to the seizure of his cell phone, the trial court determined that the arresting officers seized it “as part of a ‘dual purpose’ to their arrest after he chose to go to his bedroom and place his cell phone within his ‘immediate area of control,’ and therefore, the seizure was pursuant to a valid search incident to a lawful arrest.” The court found no fault with that analysis. As to his response to an officer’s question, confirming that the cell phone was his, the trial court concluded that even if his “response had been suppressed, there was additional evidence of his ownership of the phone, noting that” it was seized from his bedroom, and the “‘jury reviewed text messages that were downloaded from the phone. Many of those messages identified defendant as the sender and recipient by virtue of the content of the conversations.’” To the extent it was plain error to allow the officer to testify that defendant confirmed the phone was his, relief was “not warranted under the plain-error rule.” The court further concluded that, given “the prosecutor’s broad discretion to bring charges and the investigation’s suggestion that a conspiracy might be involved, the record doesn’t support the idea that the conspiracy counts were added out of vindictiveness. And failure to advance a meritless argument does not constitute ineffective assistance of counsel.”