Background
David Duane Brown struck and killed a 13-year-old pedestrian while driving on Jolly Road in Lansing and left the scene. Investigators linked Brown to the collision through surveillance footage, an anonymous tip, debris from a Chevrolet headlight, damage to Brown’s Chevrolet S-10, and data from the vehicle’s event recorder. Police also seized a cellphone that was visible in Brown’s bedroom and later searched it under a warrant.
A jury convicted Brown of driving with a suspended license causing death and failing to stop at the scene of an accident resulting in death. The trial court imposed a within-guidelines sentence of 5 years, 11 months to 15 years for the first conviction and 44 days, with credit for time served, for the second. Brown challenged the cellphone evidence, his counsel’s performance, the exclusion of his crash expert’s diagram, the scoring of Offense Variable 5, and remarks the trial judge made at sentencing.
The Court’s Holding
The Court of Appeals affirmed the convictions. It held that police lawfully seized Brown’s cellphone under the plain-view doctrine because officers were lawfully inside the residence, the phone was visible, and the circumstances supplied probable cause to believe it contained evidence of the hit-and-run. The subsequent warrant adequately connected the phone to the offense, identified the types of data subject to search, and limited the search to evidence concerning the victim’s death. Counsel therefore was not ineffective for failing to challenge the warrant, and Brown also failed to establish prejudice given the other evidence linking him and his truck to the collision.
The court also upheld the exclusion of the defense expert’s previously undisclosed diagram, reasoning that the discovery rules permitted the trial court to bar the exhibit and that the expert was still allowed to explain its substance through testimony. As to sentencing, the appellate court agreed that the judge made inappropriate and unsupported comments about Brown allowing his adult children to lie and causing the victim’s mother additional pain by taking the case to trial. Nevertheless, the record did not show that the judge increased Brown’s sentence for exercising his right not to testify or refusing to admit guilt. The within-guidelines sentence remained presumptively reasonable, and the victim’s mother’s testimony that every day had been a struggle supported scoring 15 points for serious psychological injury to the victim’s family under OV 5.
Key Takeaways
- A cellphone visible during a lawful police encounter may be seized under the plain-view doctrine when the surrounding facts establish probable cause that it contains evidence of the investigated crime, although a warrant is still required to search its contents.
- A trial court may exclude an undisclosed defense exhibit without violating the right to present a defense when the witness remains able to convey the exhibit’s substance through testimony and other admitted evidence.
- Improper sentencing remarks do not automatically require resentencing; the record must show that the court relied on an impermissible consideration, such as penalizing the defendant for maintaining innocence or exercising a constitutional right.
Why It Matters
The decision illustrates the distinction between warrantlessly seizing a digital device and searching its contents: probable cause and plain view may justify taking custody of a phone, while examination of its data ordinarily requires separate judicial authorization. It also confirms that cellphone warrants must meaningfully connect the requested data to the suspected offense and describe the intended search with sufficient particularity.
For sentencing practitioners, the opinion shows that appellate courts will scrutinize comments suggesting punishment for proceeding to trial or declining to admit guilt, even when they ultimately affirm. It also underscores that sworn testimony describing an ongoing daily struggle after a family member’s death may support an OV 5 score without proof that professional treatment has already been obtained.