9.12Motion to Suppress Evidence
A.Timing
Generally, “[a] motion to suppress evidence must be made in advance of trial[.]” People v Manning, 243 Mich App 615, 625 (2000). However, a motion to suppress evidence may be made during trial, within the trial court’s discretion. People v Ferguson, 376 Mich 90, 93-94 (1965); People v Gentner, Inc, 262 Mich App 363, 368 (2004). The trial court need not permit an untimely motion to suppress when the factual circumstances giving rise to the issue were known to the defendant before trial and could have been raised in advance. Ferguson, 376 Mich at 94-95.
A defendant is generally entitled to an evidentiary hearing where the admissibility of evidence is challenged on constitutional grounds. People v Reynolds, 93 Mich App 516, 519 (1979). However, “where it is apparent to the court that the challenges are insufficient to raise a constitutional infirmity, or where the defendant fails to substantiate the allegations of infirmity with factual support, no hearing is required.” People v Johnson, 202 Mich App 281, 285 (1993).
“Pursuant to [Franks v Delaware, 438 US 154, 155-156 (1978)], a defendant is entitled to an evidentiary hearing in order to show that the affidavit is void when the defendant makes a substantial preliminary showing of a deliberate falsehood or reckless disregard for the truth by the affiant.” People v Bogucki, ___ Mich App ___, ___ (2025) (quotation marks omitted) (noting that “to mandate an evidentiary hearing, the challenge to the affidavit must be supported by more than a mere desire to cross examine”). “The defendant has the burden of showing, by a preponderance of the evidence, that the affiant knowingly and intentionally, or with a reckless disregard for the truth, inserted false material into the affidavit and that the false material was necessary to the finding of probable cause.” Bogucki, ___ Mich App at ___ (quotation marks and citation omitted). “But the Michigan Supreme Court has held that a trial court has discretion to hold an evidentiary hearing on the veracity of a warrant affidavit even in the absence of the substantial preliminary showing required by Franks.” Id. at ___ (quotation marks and citation omitted).
A trial court’s decision whether to hold an evidentiary hearing is reviewed for an abuse of discretion. People v Unger, 278 Mich App 210, 216-217 (2008). An abuse of discretion occurs when the court chooses an outcome that falls outside the range of reasonable and principled outcomes. Id. at 217. A trial court’s findings of fact are reviewed for clear error. MCR 2.613(C).
“By filing [a] motion to suppress prior to trial, the defendant . . . follow[s] the proper procedure[, and] the trial judge act[s] correctly by holding a separate evidentiary hearing to consider the ruling.” People v Kinnebrew, 75 Mich App 81, 83 (1977). However, “a motion to suppress [may be] decided on the basis of the record of the preliminary examination” transcript if the parties so stipulate. People v Kaufman, 457 Mich 266, 276 (1998); MCR 6.110(D)(2). If the defendant testifies at an evidentiary hearing, the defendant’s testimony is not admissible at trial on the question of guilt or innocence. People v Walker (On Rehearing), 374 Mich 331, 338 (1965).
“[T]rial counsel’s failure to raise [a] Fourth Amendment challenge [could not] be excused for not foreseeing a change in the law” where “there was existing precedent that would have strongly supported a motion to suppress[.]” People v Hughes (On Remand), 339 Mich App 99, 109 (2021). Though the case involved a matter of first impression (a search of data extracted from defendant’s cell phone), “it was based on 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) . . . recognition of the extensive privacy interests in cellular data [as discussed in Riley v California, 573 US 373 (2014)].” Hughes (On Remand), 339 Mich App at 108 (quotation marks and citation omitted; emphasis in original). “[W]hile there was no authority directly addressing the Fourth Amendment question at issue in [the] case, there were well-established broader principles to draw from and caselaw to analogize–as defendant’s appointed appellate counsel did in a timely submitted brief to [the Court of Appeals] and as attorneys generally do on a regular basis. Because there was existing precedent that would have strongly supported a motion to suppress, trial counsel’s failure to raise the Fourth Amendment challenge [could not] be excused for not foreseeing a change in the law.” Id. at 109. The Hughes Court did “not hold that trial counsel was required to make an argument precisely mirroring the analysis set forth in [the caselaw]. But, based on the existing authority discussed in [the caselaw], it [was] objectively reasonable to have expected trial counsel to raise a Fourth Amendment argument and, at the very least, preserve [the] issue for appeal.” Id. at 109 (noting “trial counsel had three opportunities to move for suppression of defendant’s cell-phone data on the ground that it violated the Fourth Amendment and failed to do so”).
“While defense counsel’s performance cannot be deemed deficient for failing to advance a novel legal argument, if there was existing precedent that would have strongly supported a motion to suppress, trial counsel’s failure to raise a Fourth Amendment challenge cannot be excused for not foreseeing a change in the law.” People v Carson, ___ Mich ___, ___ (2025) (plurality opinion by Cavanagh, C.J.) (quotation marks and citations omitted).43 The plurality explained: “While we are not prepared to call the Fourth Amendment particularity argument in this case ‘novel,’ we also recognize that the application of Fourth Amendment principles in the cell-phone and digital-data sphere is an area of the law that continues to rapidly evolve.” Id. at ___. In Carson, defendant failed to demonstrate that his counsel’s performance was constitutionally deficient even though “a motion to suppress based on the lack of particularity in the search warrant at issue would not have been substantively meritless.” Id. at ___. “Defendant’s attorney filed a pretrial motion to suppress in June 2020.” Id. at ___. “The motion argued that defendant’s Fourth Amendment rights were violated not when defendant’s cell phone was searched, but rather when it was seized without a warrant at the time defendant was arrested.” Id. at ___. “Riley, which was decided several years before [Carson] arose, recognizes the important privacy implications at stake when a cell phone is searched, but its holding is that the police must obtain a search warrant before searching a cell phone seized incident to arrest.” Carson, ___ Mich at ___ (plurality opinion by Cavanagh, C.J.) (citation omitted) (noting that Riley “does not speak to particularity”). Hughes—the case which “first discussed particularity in the context of a cell-phone search—was not decided until more than six months after counsel filed his unsuccessful motion to suppress.” Carson, ___ Mich at ___ (plurality opinion by Cavanagh, C.J.) (noting that “many of our sister state courts . . . did not take up the question of particularity in this context until after 2020”). “While hindsight, [the] Hughes decision, and five additional years of technological advances and court decisions may now render the lack-of-particularity argument an obvious basis for a motion to suppress, the record supports that counsel’s decision to file a motion to suppress on a different basis was not based on a misunderstanding of the law as it existed at the time and may be fairly characterized as an exercise of reasonable professional judgment under the facts and circumstances that existed when the decision was made.” Id. at ___ (plurality opinion by Cavanagh, C.J.) (holding that “counsel’s performance was objectively reasonable under the circumstances”).
“The court must decide any preliminary question about whether a witness is qualified, a privilege exists, or evidence is admissible.” MRE 104(a). “In so deciding, the court is not bound by evidence rules, except those on privilege.” Id.; MRE 1101(b)(1). In determining whether the proffered evidence is admissible under the technical requirements of the rules of evidence, the trial court applies a preponderance of the evidence test. Bourjaily v United States, 483 US 171, 175-176 (1987).
“Although it is always preferable for purposes of appellate review that a trial court explain its reasoning and state its findings of fact with respect to pretrial motions, the court is not required to do so by court rule.” People v Shields, 200 Mich App 554, 558 (1993). See MCR 2.517(A)(4). “The court may state . . . findings and conclusions on the record or include them in a written opinion.” MCR 2.517(A)(3).
“The mechanics of interlocutory appeals are entirely the product of court rules promulgated by [the Michigan Supreme] Court pursuant to [its] constitutional imperative to ‘establish, modify, amend and simplify the practice and procedure in all courts of this state.’” People v Scott, 513 Mich 180, 186 (2024), quoting Const 1963, art 6, § 5.
“Where the trial court makes a decision on the admissibility of evidence and the prosecutor or the defendant files an interlocutory application for leave to appeal seeking to reverse that decision, the court shall stay proceedings pending resolution of the application in the Court of Appeals, unless the court makes findings that the evidence is clearly cumulative or that an appeal is frivolous because legal precedent is clearly against the party’s position. If the application for leave to appeal is filed by the prosecutor and the defendant is incarcerated, the defendant may request that the court reconsider whether pretrial release is appropriate.” MCR 6.126.
“While an automatic stay does not necessarily prevent a court from commencing trial when an interlocutory appeal is pending and the question on review is collateral to the trial,” failure to adhere to the automatic stay during an interlocutory appeal is a procedural error. Scott, 513 Mich at 202 (“Interlocutory appeals, in contrast to appeals from final orders, do not divest a trial court of subject-matter jurisdiction over a case.”). Because the stay of proceedings only applies to “proceedings related to the disputed order and not to other issues,” “a trial court’s decision in regard to which aspects of the case are and are not involved in the appeal depends on the nature of the appeal.” Id. at 199, 200 (quotation marks and citation omitted). “This decision will require familiarity with the facts of the case and experience in maintaining a trial court docket.” Id. at 200-201. “[T]he appellate court must accord this determination some degree of deference.” Id. at 201. Accordingly, “the trial court’s decision on this issue is reviewed for an abuse of discretion and will not be disturbed unless that decision falls outside the range of principled outcomes.” Id. at 201 (quotation marks and citation omitted).
In Scott, the defendant applied in the Michigan Supreme Court “for leave to appeal a Court of Appeals judgment that remanded the case to the trial court for further proceedings.” Id. at 185. “Under those circumstances, an automatic stay of the remand proceedings was in place that barred the trial court from addressing aspects of that interlocutory appeal.” Id. at 185, citing MCR 7.305(C)(6)(a). While the defendant’s application was pending, “the trial court conducted a trial that clearly involved aspects of defendant’s pending interlocutory appeal.” Scott, 513 Mich at 201. “During trial, the very evidence that was disputed in the interlocutory appeal was admitted.” Id. at 201 (explaining that “the Court of Appeals’ decision to initially grant the prosecution’s application for leave to appeal [was] itself a solid indicator that the disputed evidence was not collateral and was indeed significant to the case”). “Admitting into evidence at trial arguably prejudicial testimony that remained in dispute on appeal is not only highly irregular; it [is] also unreasonable and outside the range of principled outcomes.” Id. at 201. Although “the trial court abused its discretion by holding a trial that included this evidence under these circumstances,” the Scott Court held that it was “a procedural error” that could “be remedied through subsequent appellate review after a final judgment [was] entered.” Id. at 212.
A trial court’s factual findings at a suppression hearing are reviewed for clear error, and the ultimate ruling on a motion to suppress is reviewed de novo. People v Jones, 279 Mich App 86, 90 (2008).