Respondents Brief — Michigan, Petitioner v. Floyd Russell Galloway, Jr.

No. 24-198

IN THE

Supreme Court of the United States

_______________________

PEOPLE OF THE STATE OF MICHIGAN,

Petitioner,

v.

FLOYD RUSSELL GALLOWAY, JR.,

Respondent.

_______________________

On Petition for a Writ of Certiorari

to the Michigan Supreme Court

_______________________

BRIEF IN OPPOSITION

_______________________

Ellen K. Michaels

ELLEN K. MICHAELS &

ASSOCIATES PLLC

4301 Orchard Lake Road,

Suite 180-233

West Bloomfield, MI 48323

Christine A. Monta

Counsel of Record

RODERICK & SOLANGE

MACARTHUR JUSTICE CENTER

501 H Street NE, Suite 275

Washington, DC 20002

(202) 869-3308

christine.monta@

macarthurjustice.org

Counsel for Respondent

QUESTION PRESENTED

Whether a panel of the Michigan Court of Appeals,

in an unpublished opinion, appropriately affirmed the

suppression of evidence obtained as a result of a deliberate governmental intrusion into Respondent’s attorney-client privilege—a case-specific, nonprecedential decision that does not conflict with any decision of

this Court, a United States court of appeals, or another state court of last resort?

(i)

ii

TABLE OF CONTENTS

Question Presented ......................................................i

Table of Authorities................................................... iii

Introduction ................................................................. 1

Statement Of The Case ............................................... 2

I. The Government’s Use of Privileged

Information ............................................................ 2

II. The Suppression Hearing ...................................... 7

III.Michigan Court of Appeals .................................. 10

IV. Michigan Supreme Court .................................... 13

Reasons for Denying the Petition ............................. 14

I. There Is No Conflict. ............................................ 14

II. The Decision Below Is Correct. ........................... 19

III.The Issue Will Rarely Reoccur And This Case

Is A Poor Vehicle For Resolving It. ..................... 25

Conclusion ................................................................. 27

iii

TABLE OF AUTHORITIES

Cases

Page(s)

Brady v. Maryland,

373 U.S. 83 (1963) ...................................... 1, 13, 14

Brocamantes v. Superior Court,

42 Cal. App. 5th 102

(Cal. Ct. App. 2019).............................................. 17

Hall v. Mays,

7 F.4th 433 (6th Cir. 2021) .................................. 18

Head v. Stripling,

590 S.E.2d 122 (Ga. 2003) ................................... 18

Heck v. Humphrey,

512 U.S. 477 (1994) .............................................. 23

Hunt v. Blackburn,

128 U.S. 464 (1888) .............................................. 24

Kyles v. Whitley,

514 U.S. 419 (1995) .............................................. 17

McCormick v. Parker,

821 F.3d 1240 (10th Cir. 2016) ............................ 17

People v. Galloway,

No. 2019-272265-FC (Oakland,

Mich. Cir. Ct.)....................................................... 14

People v. Joly,

970 N.W.2d 426

(Mich. Ct. App. 2021) ................................... 7, 8, 24

iv

State v. Farris,

656 S.E.2d 121 (W.Va. 2007) ............................... 18

Swidler & Berlin v. United States,

524 U.S. 399 (1998) .............................................. 24

United States v. Antone,

603 F.2d 566 (5th Cir. 1979) ................................ 17

United States v. Morris,

80 F.3d 1151 (7th Cir. 1996) ................................ 18

United States v. Stewart,

433 F.3d 273 (2d Cir. 2006) ........................... 17, 18

United States v. Voigt,

89 F.3d 1050 (3d Cir. 1996) ................................... 7

Statutes

18 U.S.C. § 242 .......................................................... 24

Mich. Stat. § 338.1728 ......................................... 23, 25

Other Authorities

S. Ct. R. 10 ........................................................... 14, 26

INTRODUCTION

In this ongoing criminal prosecution, the State of

Michigan sought to introduce evidence that it obtained after a Michigan Chief of Police, with over 40

years of law enforcement experience, “took intentional

steps to exploit” information that he recognized to be

attorney-client privileged. Pet. App. 19a, 28a. After

a four-day evidentiary hearing, the trial court concluded that the government’s conduct was “outrageous” enough to “rise to the level of a due process violation” because (1) the government had objective

awareness that the information was attorney-client

privileged; (2) it nevertheless deliberately intruded on

that privilege; and (3) Respondent suffered actual and

substantial prejudice. Pet. App. 68a, 81a, 88a-89a.

The court also concluded that suppression of the evidence derived from the violation of Respondent’s due

process rights was an appropriate remedy. Pet. App.

93a-94a. The Michigan Court of Appeals affirmed

both rulings in an unpublished opinion, Pet. App. 12a24a, and the Michigan Supreme Court denied leave to

appeal, Pet. App. 1a-2a.

Petitioner the State of Michigan now asks for this

Court’s review. Petitioner does not allege that the unpublished decision below conflicts with another state

court of last resort or a federal circuit court. Instead,

Petitioner attempts to manufacture a conflict between

the unpublished decision below and this Court’s decision in Brady v. Maryland, 373 U.S. 83 (1963), a case

that had nothing to do with intrusions on attorneyclient privilege. But there is no such conflict, and Petitioner’s strained argument reflects little more than

a disagreement with the Michigan court’s conclusion

that, under the totality of the circumstances here, the

(1)

2

government actor who exploited Respondent’s attorney-client privilege must be deemed part of “the government” for due process purposes—a fact-bound,

case-specific determination that was clearly correct

and, even if not, would not warrant this Court’s review. Pet. App. 12a, 14a. At bottom, Petitioner simply

seeks error correction in a non-precedential, sui generis case. But there was no error here. This Court

should deny certiorari.

STATEMENT OF THE CASE

I.

The Government’s Use of Privileged Information

In early December 2016, the Farmington Hills Police Department (FHPD) was investigating the disappearance and suspected homicide of Danielle Stislicki.

Respondent Floyd Galloway, a former security guard

at Stislicki’s workplace, was a person of interest in

that investigation—he was the last person seen with

her, evidence suggested she had been in his home,

and, when questioned, he appeared nervous and lied

about his whereabouts. Pet. App. 19a. By early December, FHPD officers had applied for and received

eleven search warrants, eight of which focused on Respondent. Pet. App. 95a, 98a.

Then, on December 9, 2016, Gary Mayer, the Chief

of Police for the nearby City of Troy, received a phone

call from his friend, retired FBI agent Jim Hoppe.

Pet. App. 8a. Hoppe relayed to Mayer that he had information about “the security guard and the homicide,” but could not share the information unless his

identity was kept confidential. Id. Mayer understood

that Hoppe was referring to the Stislicki case and told

Hoppe that he would do his best to maintain Hoppe’s

3

confidentiality. Id. Hoppe then communicated to

Mayer detailed information about Stislicki’s murder:

he told Mayer that Respondent had wrapped

Stislicki’s body in a beige brown comforter, driven her

car back to her apartment, gone to a Tim Hortons and

disposed of Stislicki’s car keys, Fitbit, and cellphone,

and then called a cab from the Tim Hortons to take

him within walking distance of his work. Pet. App.

29a-30a.

Mayer understood that Hoppe was sharing information he had learned in his role as a polygraph operator for defense attorneys. Pet. App. 8a; Pet. App.

31a. Mayer also understood that Hoppe was sharing

that information with Mayer so that Mayer would relay it to the FHPD. See Pet. App. 13a (only “rational

conclusion” was that Hoppe called Mayer because he

was in a position to do something”); 5/3/22 Evid. Hr’g

Tr. at 20 (Mayer testifying his conversation with

Hoppe was “pretty quick” so they could be “sure that

Farmington Hills was able to get there and get the evidence” before an impending snowstorm). And Mayer,

a member of law enforcement for over 40 years, Pet.

App. 82a, likewise understood that when an individual like Hoppe is hired by a defense attorney, the information he learns in the course of his employment

is protected by attorney-client privilege, Pet. App.

12a, Pet. App. 31a.

Despite recognizing that “perhaps the information

couldn’t be used” because it qualified as “fruits of the

poisonous tree,” Mayer immediately called FHPD, ultimately reaching their Chief of Police, Charles

Nebus. Pet. App. 32a. Mayer relayed all of Hoppe’s

information about Respondent to Nebus, but “made it

very clear” to Nebus “that he had a source he couldn’t

4

reveal.” Pet. App. 8a-9a; Pet. App. 35a. Although the

information was “extremely specific,” Nebus testified

that it “never crossed [his] mind” that Mayer got the

information from an accomplice. Pet. App. 79a.

When Nebus got off the phone with Mayer, he

called members of the FHPD into his office. Pet. App.

37a. He let them know that “Mayer had gotten some

information from a confidential source” who was “reliable” and passed on what he had heard from Mayer to

his team. Pet. App. 37a-38a, 40a. Nebus and two of

these officers—Nebus’s Assistant Chief and a Commander—all later testified “that the information was

extremely specific, causing them to consider whether

it came from a privileged source.” Pet. App. 37a, 79a.

And although “[v]irtually every member of the FHPD

who testified” admitted that the specificity of the information would normally prompt investigation into

the source “to determine if the information was coming from the perpetrator or an accomplice,” none of the

investigating officers “attempt[ed] to follow up on obtaining the source of the tip to Mayer.” Pet. 57a-58a.

Instead, FHPD investigators immediately acted on

the privileged information that Hoppe provided to

Mayer, and Mayer to Nebus. Pet. App. 41a. Based on

that information, officers obtained surveillance footage of Respondent from the night of Stislicki’s disappearance. Pet. App. 9a. They also were able to recover

Stislicki’s Fitbit and keys. Id.; Pet. App. 43a. It was

only after FHPD officers investigated and retrieved

the evidence based on the privileged information

Mayer had passed along that Nebus typed up his

notes from his call with Mayer on an official tip sheet.

Pet. App. 37a n.2. But instead of identifying Mayer as

the caller on the tip sheet, Nebus wrote: “Upon further

5

questioning, the caller had no further information and

wished to remain anonymous.” Pet. App. 37a.

Approximately five weeks later, Nebus met privately with Oakland County Prosecutor Jessica

Cooper and Chief Assistant Paul Walton to discuss

the circumstances surrounding how he received the

information from Mayer. Pet. App. 46a. Nebus testified that he “felt the need” to disclose to the prosecutors how he received the information. Id.; Pet. App.

15a. After this meeting, Nebus consulted with a private attorney. Pet. App. 47a. When pressed at the

evidentiary hearing to answer what the purpose of

that consultation was, Nebus asserted attorney-client

privilege. Id. Nebus subsequently spoke again with

Cooper and Walton and discussed his “concern” that

they needed to find out who provided the information

to Mayer, which Cooper and Walton shared. At

Cooper and Walton’s behest, Nebus called Mayer and

told him to contact the Oakland County Prosecutor’s

Office. Id.

Mayer attempted to continue to shield Hoppe and

refused to disclose where he got the information he

had passed along to Nebus. Id. But in a phone conversation with Cooper and Walton, Mayer “gave a hypothetical” wherein he asked “what if this person

worked for the defense attorney.” Pet. App. 48a-49a.

Walton immediately guessed that Mayer’s source was

“the polygrapher or private investigator.” Pet. App.

49a. Although Walton testified that he then told

Nebus to isolate the information he had received from

Mayer, Pet. App. 50a, Nebus denied the prosecutor’s

office ever gave him that instruction, Pet. App. 53a.

Still, Nebus testified he was aware the information

was “likely privileged” and that it was “possibl[e] that

6

[the information] came from someone from the [defense] attorney’s office.” Pet. App. 54a-55a. The question of the source, Nebus noted, was “the elephant in

the room.” 5/3/22 Evid. Hrg. Tr. at 106. And Nebus

“deliberately tried to avoid talking to Chief Mayer

about the source of the tip.” Id. at 109.

The FHPD also became aware that the information

they received from Mayer “would be a problem,” Pet.

App. 55a; but even after “learning that the information came from a privileged source,” investigating

officers “continued to use the information in affidavits

in support of search warrants,” Pet. App. 56a-57a.

Indeed, although the FHPD and the Oakland

County Prosecutor’s Office were aware that the information Mayer provided came from a privileged source,

“the issue was all but ignored” until 2019, when Special Assistant Attorney General Jaimie Powell Horowitz took over the case. Pet. App. 9a-10a. FHPD officers presented the case to Powell Horowitz, and at

the close of their presentation she had one question:

who was the source of the information? Pet. App. 10a;

Pet. App. 58a-59a. The officers declined to discuss the

source and referred her to Nebus. Pet. App. 59a & n.5.

When Powell Horowitz spoke with Nebus, he revealed that the information had come from Mayer,

and that, while he did not know the name of the original source, he had “some sense” that “there may be a

privilege involved.” Pet. App. 59a-60a. When contacted, though, Mayer refused to cooperate and fought

the investigative subpoena that Powell Horowitz issued to compel him to divulge Hoppe’s identity. Pet.

App. 61a. Eventually, Mayer was forced to testify that

the information he gave to Nebus on December 9,

2016, was provided to him by Hoppe, who had been

7

employed as a polygrapher by Respondent’s attorney

in an unrelated case. Pet. App. 61a-62a.

II.

The Suppression Hearing

On March 4, 2019, the Attorney General filed a

complaint against Respondent for first degree murder. Pet. App. 62a. Powell Horowitz provided Respondent’s attorneys with all of the information from

the investigatory subpoena, including that Hoppe was

the source of the information Mayer gave to Nebus

and the FHPD. Pet. App. 62a-63a.

Respondent’s attorney filed consolidated motions

to suppress evidence, quash the information, and dismiss the case against him for violations of his state

and federal due process rights when Mayer, Nebus,

FHPD officers, and the Attorney General “knowingly

intrud[ed] on his attorney client privilege and us[ed]

that information to locate evidence and undermine his

right to a fair trial.” Pet. App. 26a, 64a. The trial

court conducted a four-day evidentiary hearing to determine “what various officers and prosecutors knew

regarding the source of the tip at any given time.” Pet.

App. 9a; Pet. App. 26a.

Relying on the three-part test set out by the Third

Circuit in United States v. Voigt, 89 F.3d 1050 (3d Cir.

1996), and followed by the Michigan Appellate Court

in People v. Joly, 970 N.W.2d 426 (Mich. Ct. App.

2021), the trial court held that the government’s conduct here “[w]ithout question” violated Respondent’s

due process rights. See Pet. App. 71a-93a.

First, the trial court found that that the government—Mayer, Nebus, and FHPD officers—had “objective awareness of an ongoing relationship covered by

the attorney-client privilege. Pet. App. 71a-81a; see

8

also Joly, 970 N.W.2d at 401 (citing Voigt, 89 F.3d at

1067). The court found that “[t]here can be little question” that Mayer, who was “serving in a governmental

capacity,” was “objective[ly] aware[]” of an attorneyclient privilege in the information he received from

Hoppe. Pet. App. 75a-76a. The trial court further

noted that Nebus, too, “objectively ascertained that he

was receiving information from a privileged source.”

Pet. App. 77a. And “Nebus [and two other FHPD officers] all testified that the information was extremely

specific, causing them to consider whether it came

from a privileged source.” Pet. App. 79a.

Second, the trial court found that Mayer and

Nebus both deliberately intruded into the privileged

attorney-client relationship. Pet. App. 81a-89a; see

also Joly, 970 N.W.2d at 401 (citing Voigt, 89 F.3d at

1067). The court found it “deeply troubling” that after

receiving clearly privileged information from Hoppe,

Mayer immediately passed the information to the

FHPD “knowing that he could compromise the evidence that might be obtained as a result.” Pet. App.

81a-82a. And Nebus, when confronted with highly

specific, detailed information that caused him to suspect the source was privileged, see Pet. App. 54a-55a,

79a, “did not put on the brakes and insist that Mayer

reveal the source so he could make a rational decision

about how to respond to the information, or contact

the Prosecutor for advice, or refuse to pass on the information until he knew that it wasn’t privileged,”

Pet. App. 84a. Instead, Nebus immediately shared

the information with the investigating officers and, after evidence was seized based on the information,

“perpetuated and enabled further use of the privileged

9

information, while masking its origins.”

88a-89a.

Pet. App.

Finally, the court found that there was “no question” that Respondent suffered actual and substantial

prejudice as a result of the government’s intrusion

into the attorney-client privilege. Pet. App. 89a-94a.

Mayer and Nebus caused the privileged information

to be used to collect evidence immediately, and the information was and continued to be used to establish

probable cause for search warrants. Pet. App. 56a57a, 89a. And, “[a]bsent a ruling from [the trial court],

the prosecution intend[ed] to introduce the evidence”

collected both by those search warrants and directly

collected on the day the FHPD initially received the

information from Mayer. Pet. App. 90a.

Ultimately, the trial court suppressed the evidence

seized as a direct result of the information Mayer

passed to Nebus, and directed further briefing on

whether evidence seized as a result of the search warrants using the privileged information should be suppressed. Pet. App. 94a, 98a. The court denied the motions to dismiss and to quash. 1 Pet. App. 113a.

It is worth noting that the motion to dismiss involved additional mishandling of the same attorney-client privileged information. In response to the investigative subpoena, Mr. Hoppe’s

attorney wrote a memo including “a detailed list of 21 pieces of

[privileged] information” Hoppe learned from administering Respondent’s polygraph, which prosecutor Powell Horowitz then reviewed and added to her file. Pet. App. 99a-100a. Respondent

moved to dismiss the indictment on the ground that Powell Horowitz took no steps to firewall the privileged information—which

she “characterized as a confession,” Pet. App. 106a—and thus anyone in the AG’s office could access the file, and a new AAG and

1

10

III.

Michigan Court of Appeals

The State appealed, Pet. App. 25a, and the Michigan Court of Appeals affirmed in an unpublished order, Pet. App. 7a-24a. Again following the threepronged test from Voigt as adopted in Joly, the court

at least two AG investigators already had, Pet. App. 100a. Although the trial court found that Powell Horowitz “knew she was

dealing with information covered by the attorney-client privilege” and yet “did not take any steps to mitigate the receipt of the

privileged information,” the court declined to dismiss the indictment because “the record is unclear” how many and which employees in the AG’s office had seen the memo, and it was “still

possible for the Attorney General’s Office to…take steps to mitigate the receipt of that information.” Pet. App. 109a-110a.

In October 2024, after Petitioner filed the instant petition for

certiorari, Respondent filed a second motion to dismiss in the

trial court, citing additional evidence that the AG’s office’s failure

to firewall the privileged information was deliberate. Brief in

Support of Motion to Dismiss, 10/08/2024. In response, the government argued, strangely, that the AG’s office had set up an

“isolation wall” to prevent dissemination of the memo outside the

prosecution team—in other words, it had firewalled the privileged information from anyone outside the prosecution, not from

those conducting the prosecution. State’s Brief in Support of

Response to Motion to Dismiss, 10/22/2024, at 21. The trial court

found that, despite the government’s “claims to have accomplished the sequestration of the information,” the AG’s office had

yet to assign untainted prosecutors to the case. Opinion and Order, 11/15/2024, at 2. Nevertheless, the court concluded that it

would be “more appropriate” to wait to pass the case to an untainted prosecutor until after the court had completed the “substantial amount of work” to resolve “whether it is necessary to

suppress other evidence that might have come into the possession of police by the improper use of the” privileged information,

i.e., evidence beyond that at issue in the instant petition. Id. at

3. Accordingly, the court denied the motion to dismiss, without

prejudice to renew if the AG fails to appoint an untainted prosecutor after all suppression motions are resolved. Id.

11

of appeals held that the trial court did not clearly err

in finding the government was objectively aware of

the attorney-client privilege because “Mayer had objective awareness of an ongoing attorney-client relationship.” Pet. App. 14a.

In doing so, the court of appeals rejected the State’s

argument that the court must separate Mayer’s actions from those of Nebus and the rest of the FHPD

such that Mayer could not be considered part of “the

government” for purposes of the due process analysis.

Pet. App. 12a. Noting that it must consider the “totality of the circumstances,” the court stated that it could

not “simply ignore” the facts that:

•

Mayer was not just some “average citizen”

but “a high-ranking law-enforcement officer

with many decades of law enforcement experience,” Pet. App. 12a;

•

Hoppe chose to disclose his information to

Mayer specifically because he was a government official “in a position to do something

to preserve important evidence,” Pet. App.

13a;

•

Mayer was certainly “aware that use of

Hoppe’s tip . . . would unlawfully breach defendant’s attorney-client privilege,” Pet.

App. 12a-13a; and

•

Mayer, while not formally “affiliated” with

FHPD, nevertheless “intentionally interjected himself” into the investigation by conveying the tip to Nebus, Pet. App. 14a.

12

The court noted that while “Nebus suspected the

tip was privileged,” that suspicion might not rise to

“objective awareness” that the information came from

“an agent of defense counsel.” Pet. App. 16a. “Nonetheless,” the court concluded, the fact that Mayer

clearly had objective knowledge “was sufficient” to

meet the first prong of the Voigt/Joly test. Id.

The court of appeals also agreed with the trial

court that the second prong of the Voigt/Joly test—

deliberate intrusion into the attorney-client relationship—was met because Mayer was objectively aware

of the relationship and turned the information over to

Nebus and the FHPD with the intent they would immediately use the information to discover evidence.

Pet. App. 16a, 18a. Again, the State argued that

Mayer’s knowledge and actions must be considered

separately from Nebus’s and FHPD’s in evaluating

the second prong.

“But,” the court recognized,

“Mayer’s involvement is the precise problem in this

case.” Pet. App. 18a. Regardless of whether or not

Nebus or FHPD had reason to believe the information

came from a privileged source, the court observed,

“the plain reality is that a government actor recognized a breach of the attorney-client privilege and

then took intentional steps to exploit it and thereby

obtain incriminating evidence.” Pet. App. 19a.

Although the State did not contest the third

prong—prejudice—the court of appeals held that it

was “readily apparent” that the government misconduct in this case resulted in actual and substantial

prejudice to Respondent. Id. And “[b]ecause each

prong of the Voigt/Joly test is satisfied, [Respondent]

demonstrated outrageous government conduct that

violated his right to due process.” Pet. App. 20a.

13

Finally, the court of appeals rejected the State’s argument that suppression of evidence was not an appropriate remedy because FHPD acted “in good faith.”

Id. The court first noted that the good-faith exception

is unique to the Fourth Amendment search-and-seizure context—entirely distinct from the due process

violation at issue here—and as such its application

here is “uncertain.” Id. The court further noted that

the purpose of the exclusionary rule is not to compensate a defendant for violation of a right, but rather to

prevent misconduct by removing any incentive for the

government to use unlawful means. Id. But allowing

FHPD to use the information received from Mayer

based on a “good faith” argument would “actually encourage misconduct”—as long as a government actor

like Mayer kept his source of privileged information

secret, officers could use privileged information he obtained and improperly shared with them with impunity. Pet. App. 22a-23a. The court of appeals did find

the extent of evidence the trial court suppressed was

overbroad and ordered the trial court to amend its order, but in all other respects it affirmed the trial

court’s choice of remedy. Pet. App. 23a-24a.

IV.

Michigan Supreme Court

The State petitioned for review in the Michigan

Supreme Court, and the court denied leave. Pet. App.

1a. Two justices dissented, arguing that “the civil and

criminal liability” potentially available for such officer

misconduct raised questions as to whether the exclusionary rule should apply, Pet. App. 2a-5a, and questioning whether the lower courts’ application of Joly

to the facts here conflicts with Brady v. Maryland, 373

14

U.S. 83 (1963), Pet. App. 5a. Petitioners now seek certiorari. 2

REASONS FOR DENYING THE PETITION

I.

There Is No Conflict.

The petition does not meet any of this Court’s criteria for exercising its certiorari review. The unpublished decision below represents a straightforward

application of the three-part test established by the

Third Circuit in Voigt, and adopted by the Michigan

Court of Appeals in Joly, to determine whether governmental intrusions into attorney-client privilege

rise to the level of a due process violation.

Notably, the petition does not take issue with the

Voigt/Joly test itself or identify any alternative test

for resolving the due process question. Nor does the

petition allege that the court of appeals’ application of

the Voigt/Joly test to the facts of this case “conflicts

with the decision of another state court of last resort

or a United States court of appeals.” S. Ct. R. 10(b).

And while the petition disagrees with suppression as

a remedy for the due process violation in this case, it

does not contend that the lower courts’ choice of remedy conflicts with the decision of another state court

of last resort or any federal circuit.

Instead, the petition attempts to manufacture a

strained conflict between the unpublished decision below and this Court’s landmark decision in Brady v.

2 The State of Michigan moved to stay further proceedings

pending resolution of this petition, but the trial court denied that

motion, and the parties proceeded to pretrial motions. See

Docket, People v. Galloway, No. 2019-272265-FC. Respondent

remains detained pending trial, and is already serving a lengthy

term of incarceration for a prior offense. See Pet. 30 & n.6.

15

Maryland, 373 U.S. 83 (1963). But Brady—a case

about prosecutors withholding exculpatory information from the defense—has no bearing on the due

process issue here, and the unpublished decision below does not conflict with either Brady or its progeny.

Although Brady did not in any way concern the issue in this case—deliberate governmental intrusions

on a defendant’s attorney-client privilege—Petitioner

contends that the unpublished decision below somehow “conflicts with Brady v. Maryland and its progeny.” Pet. 30. As Petitioner explains it, Brady and its

progeny require prosecutors to disclose exculpatory

evidence within the possession of the investigative

team, but do not impute knowledge to the prosecutor

of exculpatory information possessed by actors outside

the investigative team. Id. But here, Petitioner

claims, the Michigan Court of Appeals imputed to the

FHPD investigative team an “outside actor’s” (i.e.,

Mayer’s) knowledge of “inculpatory, yet privileged,”

information—i.e., the attorney-client privileged information that Hoppe had provided Mayer. Pet. 33.

Putting aside, again, that this case does not involve the withholding of information from the defense—i.e., a Brady issue—the problem for Petitioner’s tortured logic is that the Michigan Court of

Appeals here did not impute Mayer’s knowledge onto

FHPD’s investigative team. Rather, the court of appeals held that Mayer, in effect, made himself part of

FHPD’s investigative team when he chose to relay the

privileged information Hoppe had provided him directly to FHPD’s Chief of Police. Pet. App. 12a-14a,

18a. As such, the court expressly rejected Petitioner’s

strained reliance on Brady “imputation” case law as

16

“unavailing.” Pet. App. 13a. As the Michigan Court

of Appeals explained:

This is not a case in which the FHPD is being

charged with knowledge or misconduct of a person

without any known connection to the investigation—the very problem is that Mayer was involved

in the investigation. He intentionally interjected

himself into the matter when he conveyed Hoppe’s

tip to the FHPD. Mayer’s involvement was certainly not a mystery to Nebus, the chief of the investigating agency and recipient of the secondhand tip, at any time.

Pet. App. 14a; see also Pet. App. 18a (“The prosecution . . . urges this Court not to impute Mayer’s

knowledge or conduct to the FHPD. But Mayer’s involvement is the precise problem in this case.”).

Thus, Petitioner’s claimed “conflict” with Brady is

not a conflict at all but simply a disagreement with

the Michigan Court of Appeals’ conclusion that Mayer,

although “not affiliated with the FHPD,” must nevertheless be deemed part of the “government” for purposes of the due process analysis because of the role

he played in the investigation. Pet. App. 12a. Petitioner’s repeated, ipso facto assertion that Mayer was

an “outside officer,” Pet. i, 2, 3, 17, 18, 22, 27, 30, 33,

34, simply blinds itself to the Michigan Court of Appeals’ contrary conclusion that Mayer was no longer

an “outside officer” because he intentionally interjected himself into FHPD’s investigation.

Indeed, even if Brady case law were somehow relevant here, the Michigan courts’ treatment of Mayer

as part of “the government” for due process purposes

is wholly consistent with the functional approach

17

courts, including this one, have taken to determining

the scope of a prosecutor’s Brady obligations. As even

Petitioner recognizes, a prosecutor’s disclosure obligations under Brady are not limited to information in

his own files but extend to “any favorable evidence

known to the others acting on the government’s behalf.” Kyles v. Whitley, 514 U.S. 419, 437 (1995) (emphasis added); see Pet. 31. Thus, what matters is not

the “formal agency relationship” of the actor but

whether the actor “assisted in the government’s investigation” of the case. Brocamantes v. Superior Court,

42 Cal. App. 5th 102, 116, 117 (Cal. Ct. App. 2019); see

United States v. Antone, 603 F.2d 566, 570 (5th Cir.

1979) (rejecting “rigid distinction” based on formal

agency affiliation in favor of “case-by-case analysis of

the extent of interaction and cooperation between” investigative agencies). “[T]he relevant inquiry is what

the person did, not who the person is.” United States

v. Stewart, 433 F.3d 273, 298 (2d Cir. 2006).

Applying this functional, case-specific analysis,

courts have regularly held that actors not formally affiliated with or employed by the investigating agency

were nevertheless part of the “prosecution team” for

Brady purposes because of their involvement in the

investigation—including agents employed by outside

jurisdictions as well as completely private actors not

employed by any government agency at all. See, e.g.,

McCormick v. Parker, 821 F.3d 1240, 1246-47 (10th

Cir. 2016) (sex assault nurse examiner who was “neither a state employee nor under the prosecutor’s authority” was part of prosecution team); Antone, 603

F.2d at 568-70 (state law enforcement agents deemed

part of federal prosecution team); Brocamantes, 42

Cal. App. 5th at 116 (private forensic laboratories part

18

of state prosecution team); State v. Farris, 656 S.E.2d

121, 126 (W.Va. 2007) (Kentucky forensic examiner

part of West Virginia prosecution team); Head v.

Stripling, 590 S.E.2d 122, 126-27 (Ga. 2003) (“under

the circumstances of this case,” state Attorney General’s office “became directly involved” in the prosecution and thus “became part of the prosecution team”). 3

The Michigan Court of Appeals employed a similarly functional approach here; that is, it looked to

“what the person did, not who the person is.” Stewart,

433 F.3d at 298. And what Mayer did, it found, was

“intentionally interjected himself” into FHPD’s investigation, despite having “no formal affiliation” with

the FHPD, and “conveyed Hoppe’s tip to the FHPD” to

“further its investigation in disregard of defendant’s

rights.” Pet. App. 13a-14a, 19a. That conduct, the

court concluded, made Mayer part of the investigation—and therefore “the government”—for purposes

of the due process analysis. Pet. App. 19a. That conclusion does not implicate Brady, much less conflict

with it or any of its progeny.

3 The Brady cases Petitioner cites, Pet. 32, are not to the contrary. Those cases hold simply that a prosecutor’s Brady obligations do not extend to “information possessed by other government agencies that have no involvement in the investigation or

prosecution at issue.” United States v. Morris, 80 F.3d 1151,

1169 (7th Cir. 1996) (emphasis added); see also Hall v. Mays, 7

F.4th 433, 445 (6th Cir. 2021) (no Brady obligation where no

“connection between” actor and investigation or prosecution).

But as noted above, courts routinely hold that, where an otherwise outside actor becomes involved in the investigation or prosecution, he becomes part of the prosecution team for Brady purposes, regardless of his formal agency affiliation.

19

II.

The Decision Below Is Correct.

Beyond the absence of any conflict with this

Court’s case law, a federal circuit court, or another

state court of last resort, certiorari is also not warranted because the unpublished decision below is correct.

The court of appeals held that: (1) the government

had objective awareness that the information Hoppe

provided Mayer was attorney-client privileged; (2) it

deliberately intruded into that attorney-client relationship when it acted on the privileged information

to obtain physical evidence; and (3) Respondent incurred actual and substantial prejudice as a result of

that intrusion, a point the State conceded. Pet. App.

12a-20a. The court also held that exclusion of the evidence obtained as a result of the intrusion was the

appropriate remedy because it would deter such violations by “removing the incentive” for the government to act on privileged information. Pet. App. 21a.

Petitioner concedes that Mayer—a Chief of Police

with over 40 years of law enforcement experience—

was aware that the information Hoppe provided him

was attorney-client privileged and yet deliberately

chose to breach that privilege by sharing the information with the FHPD. Pet. 23 (conceding “Mayer’s

cognizant breach of [Respondent’s] polygrapher- and

attorney-client privileges”); Pet. 24 (conceding that

“Mayer . . . violated [Respondent’s] privilege”). In

other words, Petitioner concedes that, if Mayer is

deemed part of “the government” for purposes of

Voigt/Joly’s test, then all three prongs of that test are

unquestionably satisfied and Respondent’s due process rights were violated. What Petitioner takes issue

with is solely the court of appeals’ conclusion that

20

Mayer’s “knowing and intentional violation of defendant’s attorney client-privilege,” Pet. App. 22a, should

be attributable to “the government” that is prosecuting him for purposes of the Voigt/Joly analysis.

The court of appeals’ conclusion on that issue,

however, was undoubtedly correct. As the court of appeals noted, Mayer was not some “average citizen”

who “unwittingly share[d] privileged information.”

Pet. App. 13a. He “was a high-ranking law enforcement officer with many decades of experience” who

“understood that communications between an attorney and client could not be shared” and thus that

FHPD’s use of the information Hoppe provided him

would “unlawfully breach [Respondent’s] attorney client privilege.” Pet. App. 12a-13a. And, indeed, the

court of appeals found that “the only rational conclusion” was that Hoppe disclosed the information to

Mayer precisely because he was a government official

“in a position to do something to preserve important

evidence from getting lost or destroyed from the

snow.” Pet. App. 13a.

In short, “the plain reality is that a government actor recognized a breach of the attorney-client privilege

and then took intentional steps to exploit it and

thereby obtain incriminating evidence.” Pet. App.

19a. Instead of taking “mitigating steps” to “avoid deliberate intrusion into defendant’s attorney-client relationship,” Mayer—an experienced police chief—did

the opposite: he “intentionally interjected himself”

into FHPD’s investigation and shared with them privileged information “to further its investigation in disregard of defendant’s rights.” Pet. App. 14a, 18a-19a.

To artificially excise this government actor’s unquestionably outrageous conduct from the due process

21

analysis simply because he was not formally affiliated

with the investigating agency, Pet. App. 12a, would

make a mockery of the constitutional guarantee and

elevate form over function to the point of absurdity.

Moreover, contrary to Petitioner’s characterization, the FHPD were hardly “unwitting” victims of

Mayer’s misdeeds, acting in “pure good faith” to “virtuously collect[] evidence” without so much as an inkling that the detailed information Mayer provided

them may have come from a privileged source. Pet. 2,

22, 27. Indeed, the record shows just the opposite:

while Nebus did not know for certain that Mayer’s

source was privileged, he plainly suspected it, as did

two of his high-ranking deputies. See Pet. App. 46a47a, 79a. Yet, rather than do what experienced officers acting in “good faith” who suspect they have privileged information would do—isolate the information,

attempt to confirm its source, mitigate the breach, and

seek legal guidance—Nebus and his team did none of

those things. Instead, they immediately acted on the

privileged information, exploiting and perpetuating

the breach, while Nebus deliberately obscured the

source of his information, classifying it as an anonymous tip rather than identifying Mayer, contrary to

department protocol. Pet. App. 37a, 78a. And while

Nebus eventually—weeks later—alerted his prosecution team that Mayer was his source, the FHPD still

continued to use the privileged information to obtain

search warrants, and Nebus retained a private attorney, suggesting consciousness of wrongdoing. Pet.

App. 78a-79a. Under these circumstances, the FHPD

are hardly the innocent victims of Mayer’s rogue misconduct that Petitioners attempt to depict.

22

For that reason, the Michigan courts’ choice of

remedy—exclusion of the fruits of the due process violation—was also not erroneous. As noted above, Petitioner’s claimed “good faith” of FHPD—its principal

argument against applying exclusion—is belied by the

ample record evidence demonstrating that Nebus and

other high-ranking FHPD officials at the very least

suspected Mayer’s information derived from a privileged source. Their wink-wink-nod-nod approach—

acting on the information despite that suspicion and

in a way that violated their own protocols—can hardly

be described as “good faith.” 4

Regardless, as Petitioner recognizes, the purpose

of the exclusionary rule is to deter intentional misconduct, and “it is all but impossible to characterize

Mayer’s decisions in this case as anything but a knowing and intentional violation of defendant’s attorneyclient privilege.” Pet. App. 22a. If the government

here is permitted to use the fruits of that breach, notwithstanding Mayer’s knowing and intentional viola4 Petitioner’s conjecture that the suppression ruling in this

case will somehow result in the obliteration of anonymous citizen

tip lines like Crime Stoppers, Pet. 22, is nonsensical. The information FHPD received was not an anonymous tip from a citizen

caller but information from a known member of law enforcement

(Mayer) who himself knew the identity of the source (Hoppe) but

simply concealed it from FHPD. Moreover, “[v]irtually every

member of the FHPD who testified” acknowledged that the specificity of the information Mayer provided would have normally

prompted investigation into the source “to determine if the information was coming from the perpetrator or an accomplice.” Pet.

App. 57a-58a. In other words, FHPD’s normal practice would

have been to “vet” the source of the information Mayer provided,

Pet. 22; they simply “did not attempt to” do so here because

“Nebus resolutely told them” not to, Pet. App. 58a.

23

tion, it sends a clear message to law enforcement officers like Mayer: if they come into possession of information they know to be attorney-client privileged,

they can spread that information across law enforcement, perpetuating the breach of attorney-client privilege, and the information and its fruits can be used

against the defendant with impunity so long as the officer never reveals his source. And it sends the same

message to officers in the position of the FHPD here,

who suspect they are receiving privileged information:

so long as they bury their collective heads in the proverbial sand and don’t ask any questions, they can act

on that information without consequence.

The “alternative deterrents” Petitioner proposes in

lieu of exclusion are illusory if not wholly fanciful.

Pet. 24. Petitioner suggests that the prospect of a federal civil-rights lawsuit under 42 U.S.C. § 1983 would

deter conduct like Mayer’s. But any lawsuit for such

conduct would be barred by Heck v. Humphrey, 512

U.S. 477 (1994), in addition to likely faltering under

prong two of this Court’s qualified-immunity doctrine.

Petitioner’s reliance on a state misdemeanor statute

is even more tenuous. It is far from obvious that the

state-law provision Petitioner cites would even encompass actors like Mayer, 5 and there is no indica-

The provision Petitioner cites, Mich. Stat. § 338.1728(3), prohibits any “recipient of information, report or results from a polygraph examiner” from “disclos[ing] or convey[ing] such information” to a third party. Here, Hoppe never explicitly informed

Mayer that the information he was conveying derived from a polygraph examination. Pet. App. 8a. Thus, assuming that the statute is not a strict liability offense but requires actual knowledge,

5

24

tion, in any event, that any person has ever been prosecuted under this provision—much less that it has

been applied against a law enforcement officer. 6 Regardless, every willful constitutional violation is potentially prosecutable under 18 U.S.C. § 242; yet, the

existence of such an “alternative deterrent,” Pet. 24,

has not precluded this Court and others from employing the exclusionary rule “to promote respect for constitutional rights, deter violations of the same, and

preserve judicial integrity.” Joly, 970 N.W.2d at 437.

Here, exclusion serves a critical purpose beyond

the deterrence of willful government misconduct: preserving the sanctity of “one of the oldest recognized

privileges in the law.” Swidler & Berlin v. United

States, 524 U.S. 399, 410 (1998). As this Court recognized more than a century-and-a-half ago, the attorney-client privilege is “founded upon the necessity, in

the interest and administration of justice, of the aid

of” skilled lawyers, “which assistance can only be

safely and readily availed of when free from the consequences or the apprehension of disclosure.” Hunt v.

Blackburn, 128 U.S. 464, 470 (1888). Yet, as the trial

court noted here, “[i]f courts are unwilling to suppress

evidence when a breach of the attorney-client privilege results in a violation of due process, then the privilege’s role in our adversarial system will be eroded.”

Pet. App. 94a (quoting Joly, 970 N.W.2d at 437). The

court of appeals committed no error in ruling that the

government could not use the fruits of its deliberate

it is unclear that Mayer would qualify as a “recipient of information . . . from a polygraph examiner.”

6 Petitioner concedes that Mayer was not charged under this

provision and that the statute of limitations has run. Pet. 17 n.4.

25

breach of Respondent’s attorney-client privilege—

much less error warranting this Court’s intervention.

III.

The Issue Will Rarely Reoccur And This

Case Is A Poor Vehicle For Resolving It.

Finally, this petition presents a sui generis fact

pattern that is unlikely to ever reoccur, and this case

is a poor vehicle for resolving the issue in any event.

First, it is presumably rare that a polygrapher employed by a defense attorney would choose to violate

his ethical, professional, and contractual obligations—putting his career and reputation at risk—by

sharing confidential information he obtained via privileged attorney-client communications with law enforcement. 7 Indeed, Mayer testified that Hoppe was

“clearly emotional and conflicted about the disclosure”

and went through with it only because he feared that

certain physical evidence might become lost or destroyed in an impending snowstorm—a unique confluence of circumstances that is highly unlikely to reoccur. Pet. App. 13a.

Moreover, in the unlikely event some future defense employee would make the choice to violate his

client’s confidentiality and disclose privileged information to the police, the most probable scenario is

that he would provide such information directly to the

agency investigating the crime at issue. Such a circumstance would not present any of the issues about

7 As Petitioner notes, Pet. 24, Michigan law makes it a misdemeanor for licensed polygrapher examiners to divulge information acquired during the course of their employment, and violation is also subject to immediate suspension and revocation of

one’s polygrapher license. Mich. Stat. § 338.1728(2).

26

an “outside officer” that Petitioner claims create a conflict with Brady here. It is only because Hoppe happened to provide his privileged information to the police chief in the next town over (because he happened

to have a personal relationship with him), rather than

directly to the agency investigating the homicide, that

the added wrinkle about whether Mayer’s conduct can

be attributed to “the government” for purposes of

Voigt/Joly—i.e., the entire basis for Petitioner’s petition—even exists here. Given the unlikelihood of that

unusual circumstance ever arising again, this case is

not worth this Court’s attention. And in any event

whether Mayer’s conduct can be attributable to “the

government”—a fact-bound, case-specific question—is

hardly an “important question of federal law” meriting this Court’s intervention. S. Ct. R. 10(c).

Regardless, this case is not a good vehicle for resolving the issue. For starters, it is unpublished and

lacks precedential value. Thus, Petitioner’s request

for certiorari review amounts to little more than an

appeal for error-correction in an individual case.

Moreover, since this appeal arises in a pretrial posture, it remains to be seen whether the government

even needs the suppressed evidence to convict. Indeed, if the government introduces all the evidence it

claims to possess, Pet. 4-6, it may well secure a conviction irrespective of the suppression ruling.

Finally, despite Petitioner’s hyperbolic rhetoric,

Pet. 28-30, declining certiorari will not result in Respondent’s release. As Petitioner acknowledges, even

if Respondent prevails at his eventual trial in this

matter, he is middle-aged and already serving a

lengthy term of incarceration for a prior offense. Pet.

30 & n.6. Petitioner’s concerns about its ability to

27

prosecute this particular criminal matter—the result

of its own agent’s “knowing and intentional violation

of defendant’s attorney-client privilege,” Pet. App.

22a—do not warrant extension of this Court’s limited

resources.

CONCLUSION

The Court should deny certiorari.

Respectfully submitted,

Ellen K. Michaels

ELLEN K. MICHAELS &

ASSOCIATES PLLC

4301 Orchard Lake Road,

Suite 180-233

West Bloomfield, MI 48323

Christine A. Monta

Counsel of Record

RODERICK & SOLANGE

MACARTHUR JUSTICE CENTER

501 H Street NE, Suite 275

Washington, DC 20002

(202) 869-3308

christine.monta@

macarthurjustice.org

Counsel for Respondent

DECEMBER 2024