If this opinion indicates that it is “FOR PUBLICATION,” it is subject to 

revision until final publication in the Michigan Appeals Reports.

-1-

S T A T E O F M I C H I G A N

C O U R T O F A P P E A L S

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee,

UNPUBLISHED

April 8, 2021

v No. 348244

Wayne Circuit Court

DEMETRIUS CHAPEL, LC No. 18-004779-01-FC

Defendant-Appellant.

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee,

v No. 349245

Wayne Circuit Court

EMANUEL LONG, LC No. 18-004780-01-FC

Defendant-Appellant.

Before: TUKEL, P.J., and JANSEN and CAMERON, JJ.

PER CURIAM.

Defendants Demetrius Chapel and Emanuel Long, at a joint trial before the same jury, were 

each convicted of first-degree premeditated murder, MCL 750.316(1)(a), conspiracy to commit 

first-degree murder, MCL 750.157a and MCL 750.316(1)(a), discharge of a firearm from a vehicle 

causing death, MCL 750.234a(1)(d), discharge of a firearm at a building causing death, MCL 

750.234b(5), two counts of assault with intent to commit murder, MCL 750.83, discharge of a 

firearm at an occupied building, MCL 750.234b(1), and seven counts of possession of a firearm 

during the commission of a felony, MCL 750.227b. The trial court sentenced each defendant to 

life imprisonment without parole for the first-degree murder and conspiracy to commit murder 

convictions, to 20 to 40 years’ imprisonment for the assault with intent to commit murder and 

discharge of a firearm causing death convictions, and to 5 to 10 years’ imprisonment for the 
-2-

discharge of a firearm at an occupied building conviction. Defendants were also sentenced to two 

years’ imprisonment each for the felony-firearm convictions, which were to be served 

consecutively to the other sentences.

With respect to Docket No. 348244, we remand to the trial court for proceedings consistent 

with this opinion. We do not retain jurisdiction. With respect to Docket No. 349245, we affirm. 

I. BACKGROUND

Defendants’ convictions arise from multiple shootings that occurred on November 30, 

2017, in Detroit. In the hours before the the shootings occurred, several individuals had gathered 

at a home on Nashville Street. Antonio Henley was one of those individuals. At some point, 

Henley walked to liquor store that was on the corner of Nashville Street and Gunston Street. 

Markise Wright, who lived on Gunston Street, was in the liquor store parking lot in a silver car

when Henley arrived. Wright was affiliated with a gang or group that was in a rivalry with Block 

Squad, and Henley’s brother was affiliated with Block Squad. Wright exchanged hostile looks

with Henley, and they began to argue. According to Henley, Wright was “irate” and displayed a 

pistol. Henley proceeded back to the home on Nashville Street, and Wright followed him in the

silver car. Wright drove past the home several times, which frightened the individuals who were 

present. Henley left the premises.

At 7:01 p.m., Wright began calling Long to inform him that Henley was in the 

neighborhood. Long was at an Applebee’s restaurant in Roseville when he spoke to Wright. At 

7:22 p.m., Long was seen leaving the Applebee’s restaurant. Long got into in a black Buick and 

drove away. Cell phones associated with Long and Chapel communicated multiple times between 

7:37 p.m. and 7:41 p.m. At 7:45 p.m., the phone associated with Chapel left the area of Grayton 

Street and stopped at LaSalle College Park, which is close to Nashville Street. Shortly before 8:00 

p.m., both cell phones were utilizing cellular towers in Detroit that were in similar sectors and 

were in the area of the crime scene. At approximately 8:33 p.m., a black Buick pulled up to the

Nashville Street home. Two of the Buick’s windows rolled down, and shots were fired from the 

vehicle.

One individual was killed and several other individuals were wounded in the shootings. 

Wright and Long were identified as suspects and they were arrested in December 2017. On 

January 8, 2018, Chapel was interviewed by law enforcement concerning a homicide that is 

unrelated to this case. Chapel, who was on probation at the time of the interview, was not arrested. 

However, before the interview, Chapel’s personal belongings were removed from his person. 

Chapel’s personal belongings were returned to him at the conclusion of the interview, with the 

exception of his cell phone. On January 9, 2018, a search warrant was issued permitting law 

enforcement to extract the data from the cell phone. During law enforcement’s analysis of that 

data, it was discovered that the cell phone was in the area of the shootings on the evening of 

November 30, 2017. Chapel was later arrested. 
-3-

As part of a plea agreement, Wright testified for the prosecution at Long and Chapel’s joint 

trial.1 The jury found both defendants guilty of the crimes referenced above, and defendants were 

sentenced as described above.

2 These appeals followed.

II. CHAPEL’S ARGUMENTS ON APPEAL (DOCKET NO. 348244)

A. SEIZURE OF CHAPEL’S CELL PHONE

Chapel argues that the trial court erred by denying his motion to suppress evidence 

concerning the data that was extracted from his cell phone and presented as evidence at trial.

1. PRESERVATION AND STANDARDS OF REVIEW

“We review issues of constitutional law de novo.” People v Benton, 294 Mich App 191, 

203; 817 NW2d 599 (2011). Additionally,

[t]his Court reviews for clear error a trial court’s factual findings in a ruling on a 

motion to suppress evidence. A trial court’s factual findings are clearly erroneous 

when this Court is left with a definite and firm conviction that the trial court made 

a mistake. The decision whether to admit evidence is within a trial court’s 

discretion . . . . A trial court abuses its discretion when it selects an outcome that 

falls outside the range of reasonable and principled outcomes. To the extent that a 

trial court’s ruling on a motion to suppress involves an interpretation of the law or 

the application of a constitutional standard to uncontested facts, our review is de 

novo. [People v Clark, 330 Mich App 392, 415; 948 NW2d 604 (2019) (quotation 

marks and citations omitted).]

2. RELEVANT AUTHORITY AND ANALYSIS

“The Fourth Amendment of the United States Constitution and its counterpart in the 

Michigan Constitution guarantee the right of persons to be secure against unreasonable searches 

and seizures.” People v Kazmierczak, 461 Mich 411, 417; 605 NW2d 667 (2000). The basic 

purpose of the Fourth Amendment “is to safeguard the privacy and security of individuals against 

arbitrary invasions by governmental officials.” Carpenter v United States, ___ US ___, ___; 138 

S Ct 2206, 2213; 201 L Ed 2d 507 (2018) (quotation marks and citation omitted). 

 

1 Wright pleaded guilty to commission of a felony by a gang member, MCL 750.411u, and 

discharge of a firearm from a vehicle causing death. Wright was sentenced to 5 to 20 years’ 

imprisonment for each conviction.

2 Along with the crimes referenced above, defendants were also each charged with two additional 

counts of assault with intent to murder, two additional counts of felony firearm, and one count of 

commission of a felony by a gang member. At the close of the prosecutor’s proofs, defendants 

both moved for directed verdict. Two counts of assault with intent to murder were dismissed, as 

were the accompanying felony-firearm charges. The gang charges were also dismissed after the 

prosecutor conceded that sufficient evidence had not been presented.
-4-

As relevant to this appeal, “a seizure of property occurs when there is some meaningful 

interference with an individual’s possessory interests in that property.” People v Woodard, 321 

Mich App 377, 383; 909 NW2d 299 (2017) (quotation marks, citation, and alteration omitted). 

“Whether a search or a seizure is lawful depends on whether it is reasonable. Therefore, a search 

for purposes of the Fourth Amendment occurs when the government intrudes on an individual’s 

reasonable, or justifiable, expectation of privacy.” People v Mahdi, 317 Mich App 446, 457-458; 

894 NW2d 732 (2016) (quotation marks and citations omitted). The Fourth Amendment 

protection against unreasonable searches and seizures applies to cell-phone data. People v Hughes, 

___ Mich ___, ___; ___ NW2d ___ (2020) (Docket No. 158652). “A warrantless search and 

seizure is per se unreasonable[.]” People v Roberts, 292 Mich App 492, 503; 808 NW2d 290 

(2011) (quotation marks and citation omitted). However, “[t]he right to be secure against 

unreasonable searches and seizures absent a warrant based upon probable cause is subject to 

several specifically established and well-delineated exceptions.” Kazmierczak, 461 Mich at 417.

In this case, Chapel does not contend that law enforcement’s search of the contents of his 

cell phone pursuant to the search warrant was unlawful. Rather, Chapel argues that the initial 

seizure of the phone was unlawful. It is undisputed that the police did not obtain a warrant for the 

initial seizure of the phone. Thus, the threshold issue on appeal is limited to whether the police’s 

seizure of the cell phone qualified under one of the exceptions to the warrant requirement.

As already stated, Chapel was interviewed concerning a homicide unrelated to this case

that occurred on December 13, 2017, in Detroit. The victim in that case was shot in the course of 

a robbery and died a short period of time later. Two witnesses who were with the victim before 

he was killed identified Devontae Perry as the man who approached the victim. The witnesses 

indicated that Perry pointed a gun at the victim and said “you know what time it is.” However, 

because the witnesses fled on foot before the shooting occurred, they did not see Perry shoot the 

victim. Perry was arrested and interrogated. Perry indicated that a man nicknamed “Meech” was 

the shooter, and that he had provided the gun for the homicide. Perry provided law enforcement 

with Meech’s Facebook information, and further investigation revealed that the account was 

associated with Chapel.

According to Chapel, on January 8, 2018, police officers arrived at his home “and took him 

to his probation officer’s office.” Although it appears to be undisputed that Chapel was informed 

that he was not under arrest, law enforcement officers confiscated Chapel’s personal property, 

which included a cell phone. Chapel was questioned about the unrelated homicide. According to 

Chapel, he did not “know anything about the homicide.” When the interview concluded, Chapel 

was taken from the probation department to the homicide department. Chapel was eventually 

permitted to leave and, with the exception of the cell phone, his property was returned. 

Law enforcement sought a search warrant to obtain the data contained on Chapel’s cell

phone. The affidavit supporting the search warrant outlined law enforcement’s investigation of 

the unrelated homicide, including the information provided by Perry and Chapel’s association with 

the Facebook account identified by Perry. The affidavit provided, in relevant part, as follows:

On January 8, 2018, . . . Chapel . . . was interrogated. Mr. Chapel had an 

Alcatel cell phone on [sic] his possession and stated he has had the cellphone for 

“sometime”. Mr. Chapel denied being at the homicide scene and any involvement 
-5-

in the homicide. Mr. Chapel refused consent to forensically dump his cell phone. 

[The affiant] recovered his cellular phone and placed on evidence tag .42.

Affiant has probable cause to believe there is evidence inside of the listed 

electronic device(s) in relation to the fatal shooting of the [homicide victim].

On January 9, 2018, law enforcement obtained the search warrant. After the “forensic 

dump” of Chapel’s cell phone was complete, law enforcement located evidence concerning 

Chapel’s “whereabouts on the date of November 30th at about 8:30 in the p.m.”3 Specifically, 

Sarah Markel accessed the Google Maps app on Chapel’s phone and was able to determine that he 

was in the area of the shootings on the evening of November 30, 2017. Markel also determined 

that Internet searches related to the November 30, 2017 shootings had been conducted on the 

phone. Markel also located a photograph of Chapel and Long on Chapel’s cell phone. The 

photograph was sent to Chapel by Long in a text message. In the photograph, Chapel is holding a 

firearm.

Chapel argued before the trial court that Markel’s testimony concerning the data that she 

analyzed from Chapel’s cell phone should be precluded. The prosecutor objected, arguing that the 

phone was properly seized because probable cause existed to support that Chapel was involved in 

the unrelated homicide and because the facts were akin to a search incident to arrest. The

prosecutor also emphasized that a search warrant to extract the data was obtained before the search 

occurred. The trial court ultimately denied the motion. In doing so, the trial court relied on United 

States v Gholston, 993 F Supp 2d 704 (ED Mich, 2014). Chapel argues that the trial court’s

decision was in error, and we agree.

As an initial matter, we note that the record does not indicate that Chapel made a pretrial 

motion to suppress the cell-phone data as illegally seized evidence. “It is a general rule that any 

motion to suppress evidence must be made before trial if the defense counsel is aware of the 

evidence at that time.” People v Character, 32 Mich App 40, 43; 188 NW2d 12 (1971). “The 

orderly conduct of a trial necessitates that such motions and the resultant hearing be disposed of 

before trial.” Id. 

In this case, defense counsel waited until the fourth day of trial to verbally move the trial 

court to suppress evidence concerning the data that was obtained from Chapel’s cell phone. The 

prosecutor noted on the record that the motion took him by surprise, that the seizure issue should 

have been resolved before trial, and that the member of law enforcement who could provide 

specific details about the seizure was not available to answer questions because the prosecutor did 

not know that “this was going to be a motion up today.” When questioned about the lateness of 

the motion, defense counsel indicated that he had only learned of the contents of the search warrant 

affidavit the day before. Although the prosecutor was not certain that a copy of the warrant had 

 

3

It is unclear if Chapel was charged with any crimes associated with the unrelated homicide.
-6-

been provided during discovery,

4

defense counsel should have been aware long before trial that 

Chapel’s cell-phone data had been searched. Had defense counsel filed a proper pretrial motion

or provided the prosecutor with notice of his intent to move the trial court to preclude Markel’s 

testimony, an evidentiary hearing could have been held to inquire into the details of the seizure. 

Unfortunately, this did not occur. As a result, we are left with limited details concerning the seizure 

of the phone.

Despite the limited record, the trial court essentially concluded that a Fourth Amendment 

violation did not occur when Chapel’s cell phone was seized because the facts in this case are akin 

to a search incident to arrest. A police officer may perform a warrantless search of an individual 

incident to a lawful custodial arrest. United States v Robinson, 414 US 218, 235; 94 S Ct 467; 38 

L Ed 2d 427 (1973) (“It is the fact of the lawful arrest which establishes the authority to search, 

and we hold that in the case of a lawful custodial arrest a full search of the person is not only an 

exception to the warrant requirement of the Fourth Amendment, but is also a ‘reasonable’ search 

under that Amendment.”). Such a search is justified by “the need to disarm the suspect in order to 

take him into custody” and the “need to preserve evidence on his person for later use at trial.” Id.

at 234.

The trial court relied on United States v Gholston when denying Chapel’s motion to 

suppress. In that case, the police arrested the defendant for his alleged involvement in a robbery. 

Gholston, 993 F Supp 2d at 707. The defendant’s cell phone, which was on his person, was seized 

at the time of his arrest and was not returned to him when he was released on February 25, 2013,

following “a detention hearing[.]” Id. On March 4, 2013, the police obtained a search warrant to 

search the contents of the phone, and incriminating evidence was discovered during the search. 

Id. at 708. The defendant sought to suppress the evidence that was obtained during the search of 

his cell phone. Id. The defendant acknowledged that the arresting officers had authority to conduct 

a search incident to his arrest, but he argued

that the seizure and subsequent search of his cell phone were unlawful because (i) at 

the time of his arrest, it would not have been immediately apparent to the arresting 

officers that the cell phone would contain incriminating evidence subject to seizure, 

and (ii) nothing in the ensuing investigation or in the search warrant application

prepared by [law enforcement] bridged this gap and provided probable cause to 

believe that this device would contain evidence of the robbery offense under 

investigation. [Id. at 708-709.]

 

4 The prosecutor stated as follows: 

Your Honor, I was not originally on this case so I don’t know what was in the 

original discovery packet. I know search warrants was [sic] provided to defense 

counsel. I don’t know if that one was so I’m not going to speak on that. I believe 

they all were. But I did send him a copy of the search warrant yesterday when he 

asked for it.
-7-

The Gholston court concluded that, even if the defendant was “correct that the initial seizure of his 

cell phone at the time of his arrest was unlawful, he has failed to suggest a reason why the exclusion 

of evidence found in a subsequent search of this device pursuant to a warrant would be a proper 

remedy for any such transgression.” Id. at 715. The court concluded that the officer followed the 

correct course by seizing the phone incident to the defendant’s arrest and by refraining from 

searching the phone until he obtained the warrant. Id. at 716. The Gholston court also stated that 

holding the defendant’s cell phone for a few days after his release was only a “modest intrusion”

that “did not implicate a more substantial privacy or liberty interest” and did not “warrant the last 

resort of an exclusionary remedy . . . .” Id. (quotation marks and citations omitted).

In this case, unlike in Gholston, it does not appear that Chapel’s phone was seized 

following a search incident to a lawful arrest. Indeed, Chapel’s counsel indicated on the record 

that Chapel was informed that he was not under arrest when he was brought in for questioning and 

that his property, with the exception of his cell phone, was returned to him after the interview. 

Although the trial court appears to have concluded that the taking of Chapel’s cell phone before 

the interview was justified because it was sufficiently similar to a search incident to arrest, we are 

not convinced of the similarity. There may be legitimate security concerns related to a 

probationer’s possession of a cell phone when meeting with a law enforcement officer, but these 

concerns are resolved when the probationer departs. Additionally, any security concerns during 

the interview do not explain why the cell phone was not returned to Chapel. Furthermore, while 

the record supports that Chapel was on probation at the time of the seizure, we cannot examine 

Chapel’s probation conditions because they are not contained in the record and were not referenced 

on the record. “Without the probation conditions, there is insufficient evidence in the record to 

conclude that the officers had reasonable suspicion that” Chapel, as “a probationer subject to a 

search condition was engaged in criminal activity.” See Mahdi, 317 Mich App at 466 (emphasis 

omitted). Cf. United States v Knights, 534 US 112, 118; 122 S Ct 587; 151 L Ed 2d 497 (2001) 

(concluding that a search of a probationer was reasonable under the totality of the circumstances 

and that “the probation search condition” was a “salient circumstance”).

Additionally, the evidence does not support that the officers were entitled to seize the cell

phone under the plain-view exception to the warrant requirement. Specifically, there is no 

indication that the police seized Chapel’s cell phone because the incriminating nature of the phone 

was immediately apparent when they first encountered Chapel or that the incriminating nature of 

the phone became apparent during the course of the interview. See Mahdi, 317 Mich App at 462. 

Indeed, the limited record before us establishes that Chapel was questioned about a homicide that 

is unrelated to this case. Although Perry implicated Chapel in the unrelated homicide, there is no 

indication that Perry indicated that Chapel had used his cell phone at any relevant time. Rather, it 

appears that further investigation was necessary to establish a connection between the cell phone 

and the suspected criminal activity. Specifically, cell-phone data had to be extracted and analyzed.

Although the prosecutor argues that the police had concerns that Chapel would have 

destroyed or discarded the phone if had not been seized, there is no record evidence to support this 

assertion. The affidavit supports that Chapel refused to consent to a search of his cell-phone data. 

While this refusal could support that Chapel knew that the phone contained incriminating 

evidence, a mere possibility that evidence might be destroyed is insufficient in the absence of an 

objectively reasonable basis for concluding that such destruction is actually imminent and leaves 

no time to obtain a warrant. People v Blasius, 435 Mich 573, 594; 459 NW2d 906 (1990). Indeed, 
-8-

“[t]o validate searches . . . on the basis of hypothetical possibilities of destruction or removal 

would essentially nullify Fourth Amendment protections.” Id. Consequently, on this limited 

record, we cannot say that the warrantless seizure of the cell phone was lawful.

Moreover, even if we were to conclude that the seizure of the cell phone was lawful, our 

inquiry would not stop there given our Supreme Court’s recent holding in People v Hughes. In 

Hughes, the defendant was under investigation for drug trafficking, and law enforcement 

successfully obtained a search warrant to search the defendant’s cell phone for evidence relating 

to that crime. Hughes, ___ Mich at ___; slip op at 4-5. After the cell phone was seized, the 

defendant was charged with armed robbery. Id. at ___; slip op at 5. Thereafter, a forensic 

examination of the phone was performed, and all of its data was extracted. Id. at ___; slip op at 5. 

“A month or so after the initial extraction, at the request of the prosecutor in [the] defendant’s 

armed-robbery case, [a detective] conducted further searches of the cell-phone data[.]” Id. at ___; 

slip op at 6. The searches uncovered evidence of the defendant’s involvement in the armedrobbery case. Id. at ___; slip op at 6. The evidence was used at the defendant’s armed-robbery 

trial, and he was ultimately convicted of armed robbery. Id. at ___; slip op at 7.

The defendant appealed, arguing that “the phone records should have been excluded from 

trial because the warrant supporting a search of the data only authorized a search for evidence of 

drug trafficking and not armed robbery[.]” Hughes, ___ Mich at ___; slip op at 7. Our Supreme 

Court agreed, concluding that the seizure and search of cell-phone data pursuant to a warrant does 

not extinguish the “otherwise reasonable expectation of privacy in the entirety of that seized data.” 

Id. at ___; slip op at 13. Specifically, the Hughes Court held as follows:

[T]he search and seizure of [the] defendant’s cell-phone data pursuant to a warrant 

in the drug-trafficking case did not altogether eliminate his reasonable expectation 

of privacy in that data. Rather, the police were permitted to seize and search that 

data, but only to the extent authorized by the warrant. Any further review of the 

data beyond the scope of that warrant constitutes a search that is presumptively 

invalid under the Fourth Amendment, absent some exception to that amendment’s 

warrant requirement. [Id. at ___; slip op at 21.]

The Hughes Court then considered “whether the review of [the] defendant’s data for 

evidence of an armed robbery fell within the scope of the warrant issued in the drug-trafficking 

case.” Hughes, ___ Mich at ___; slip op at 21. The Court held that a search of cell-phone data 

“must be reasonably directed at uncovering evidence of the criminal activity alleged in the warrant 

and that any search that is not so directed but is directed instead toward finding evidence of other

and unrelated criminal activity is beyond the scope of the warrant.” Id. at ___; slip op at 22 

(quotation marks and citation omitted). The Court acknowledged that “criminal suspect[s] will 

not always store or organize incriminating information on his or her digital devices in the most 

obvious way or in a manner that facilitates the location of that information.” Id. at ___; slip op at 

24-25. Nonetheless, the Court declined “to adopt a rule that it is always reasonable for an officer 

to review the entirety of the digital data seized pursuant to a warrant on the basis of the mere 
-9-

possibility that evidence may conceivably be found anywhere on the device or that evidence might 

be concealed, mislabeled, or manipulated.” Id. at ___; slip op at 25. The Court held that,

[s]uch a per se rule would effectively nullify the particularity requirement of the 

Fourth Amendment in the context of cell-phone data and rehabilitate an 

impermissible general warrant that would in effect give police officers unbridled 

discretion to rummage at will among a person’s private effects. 

* * *

[A]n officer’s search of seized digital data, as with any other search 

conducted pursuant to a warrant, must be reasonably directed at finding evidence 

of the criminal activity identified within the warrant. 

Specifically in the digital context, this requires that courts and officers 

consider whether the forensic steps of the search process were reasonably directed 

at uncovering the evidence specified in the search warrant. Whether a search of 

seized digital data that uncovers evidence of criminal activity not identified in the 

warrant was reasonably directed at finding evidence relating to the criminal activity 

alleged in the warrant turns on a number of considerations, including: (a) the nature 

of the criminal activity alleged and the type of digital data likely to contain evidence 

relevant to the alleged activity; (b) the evidence provided in the warrant affidavit 

for establishing probable cause that the alleged criminal acts have occurred; 

(c) whether nonresponsive files are segregated from responsive files on the device; 

(d) the timing of the search in relation to the issuance of the warrant and the trial 

for the alleged criminal acts; (e) the technology available to allow officers to sort 

data likely to contain evidence related to the criminal activity alleged in the warrant 

from data not likely to contain such evidence without viewing the contents of the 

unresponsive data and the limitations of this technology; (f) the nature of the digital 

device being searched; (g) the type and breadth of the search protocol employed; 

(h) whether there are any indications that the data has been concealed, mislabeled, 

or manipulated to hide evidence relevant to the criminal activity alleged in the 

warrant, such as when metadata is deleted or when data is encrypted; and

(i) whether, after reviewing a certain number of a particular type of data, it becomes 

clear that certain types of files are not likely to contain evidence related to the 

criminal activity alleged in the warrant. 

* * *

The fact that some data reviewed turns out to be related to criminal activity 

not alleged in the authorizing warrant does not render that search per se outside the 

scope of the warrant. So long as it is reasonable under all of the circumstances for 

officers to believe that a particular piece of data will contain evidence relating to 

the criminal activity identified in the warrant, officers may review that data, even 

if that data ultimately provides evidence of criminal activity not identified in the 

warrant. [Hughes, ___ Mich at ___; slip op at 25-30 (footnotes, quotation marks,

and citations omitted).]
-10-

The Hughes Court concluded that the second search of the defendant’s phone “constituted 

a warrantless search that was unlawful under the Fourth Amendment” because the “review was 

directed exclusively toward finding evidence related to the armed-robbery charge, and it was

grounded in information obtained during investigation into that crime.” Id. at ___; slip op at 34.

In this case, the warrant authorized officers to search Chapel’s cell phone, including “the 

entire contents” of the phone. The warrant also authorized officers “to seize, secure, tabulate and 

make return according to law the following property and things: All electronic data contained 

within the electronic device.” This included “all phone numbers, contact information, phone 

information, text messages, email messages, photos, videos, and any other data contained within 

the listed device[.]” Although the warrant was broad, the affidavit did not mention the crimes at 

issue in this case, let alone seek to establish probable cause that Chapel committed them. 

Consequently, the warrant did not authorize a search of Chapel’s data for evidence related to the 

crimes at issue in this case. See Hughes, ___ Mich at ___; slip op at 31.

As already stated, the unrelated homicide occurred on December 13, 2017, while the crimes 

at issue in this case occurred on November 30, 2017. There is nothing in the warrant or affidavit 

that would suggest that reviewing data concerning the movements of Chapel’s cell phone on 

November 30, 2017, would uncover evidence concerning the unrelated homicide. To the extent 

that Markel was reviewing the cell-phone data for evidence of Chapel’s involvement in the crimes 

at issue in this case, it is unclear why she was doing so. Indeed, there is no indication that another 

search warrant was obtained that authorized Markel to search for such evidence. The extent to 

which Chapel was even under investigation for the crimes at issue in this case at the time the data 

analysis was conducted is not apparent from the record. Although law enforcement was likely 

aware that Long and Chapel’s phones had communicated before the shootings occurred, there is 

no indication that Chapel’s phone records had been obtained at the time his phone was seized in 

relation to the unrelated homicide. Indeed, the warrant for the cell-phone records associated with 

Chapel’s cell phone was not signed until January 9, 2018, which is the same day that the warrant 

for the data contained on Chapel’s cell phone was signed.

It is also unclear whether Markel reviewed all of the data at once solely in relation to the 

unrelated homicide and, in doing so, happened to uncover evidence of Chapel’s involvement in 

the crimes at issue in this case. Indeed, unlike in Hughes, the record does not specify that Markel 

was directed to conduct another search at the behest of the prosecutor in this case. There is also 

no indication that the evidence was located because Chapel hid or manipulated his files to conceal 

evidence related to the unrelated homicide. Indeed, Markel testified specifically how she located 

the Google Maps information. Markel testified as follows:

There is an app on there [called] Google Maps. This is a common app that 

we use for getting directions, location information. So on this phone the location 

services was turned on.

Under Google Maps is a section called Timeline. And in the Timeline we 

can go back and look at the Timeline and look at a specific date. And Google Maps 

timeline and through the history will show us every place that we were at on any 

particular day that it records that information.
-11-

So on this phone in order to access that I have to take it out of airplane mode, 

and then I can look at the Google map history. So I did that with this case [and] 

went to the timeline [that] went to November 30th, 2017 and looked at the locations 

that this phone traveled to.

This testimony suggests that Markel sought out evidence concerning these crimes—as 

opposed to locating the evidence by happenstance—while she was searching for evidence 

concerning the unrelated homicide. Because the record does not speak to whether Markel’s search 

was designed to uncover evidence of criminal activity not identified in the warrant, we cannot 

conclude whether the search that uncovered the evidence pertaining to the crimes at issue in this 

case constituted a warrantless search that was unlawful under the Fourth Amendment.

Given the limited record in this case, we find it necessary to remand to the trial court for 

an evidentiary hearing concerning the circumstances surrounding the seizure of Chapel’s cell 

phone and the circumstances surrounding Markel’s search of the phone in relation to the crimes at 

issue in this case. At the conclusion of the hearing, the trial court must decide whether Chapel’s 

cell phone was lawfully seized. The trial court must also decide whether Markel’s review of the 

data was reasonably directed toward obtaining evidence of the unrelated homicide, or whether the 

search exceeded the scope of the warrant and constituted a warrantless search that was unlawful 

under the Fourth Amendment. If necessary, the trial court must also decide whether the 

exclusionary rule applies with respect to the cell-phone data and the cell-phone records associated 

with Chapel’s phone.5 Given our decision to remand, we need not consider Chapel’s remaining 

arguments on appeal at this time.

III. DOCKET NO. 349245 (DEFENDANT LONG)

A. SUFFICIENCY OF THE EVIDENCE

Long argues that there was insufficient evidence to sustain his convictions. We disagree. 

1. STANDARD OF REVIEW

“We review de novo a challenge on appeal to the sufficiency of the evidence.” People v 

Henry, 315 Mich App 130, 135; 889 NW2d 1 (2016) (quotation marks and citation omitted). “To 

determine whether the prosecutor has presented sufficient evidence to sustain a conviction, we 

review the evidence in the light most favorable to the prosecutor and determine whether a rational 

trier of fact could find the defendant guilty beyond a reasonable doubt.” People v Smith-Anthony, 

 

5 The prosecutor notes that Stan Brue testified as an expert in the forensic analysis of cell-phone 

records. Brue presented a chart depicting the phone calls between the phones associated with 

Chapel and Long in the hour before the shootings. Brue also presented a map, depicting the 

cellular sites and sectors that the phones associated with Chapel and Long were utilizing on the 

evening of November 30, 2017. The sites and sectors used in the periods before and after the 

shootings were consistent with use near the crime scene. According to the prosecutor, this 

evidence “was not based upon evidence obtained from the seizure” of Chapel’s cell phone and 

therefore “would be unaffected, no matter the disposition of this issue on appeal.” 
-12-

494 Mich 669, 676; 837 NW2d 415 (2013) (quotation marks and citation omitted). “The standard 

of review is deferential: a reviewing court is required to draw all reasonable inferences and make 

credibility choices in support of the jury verdict.” People v Bailey, 310 Mich App 703, 713; 873 

NW2d 855 (2015) (quotation marks and citation omitted).

2. RELEVANT AUTHORITY AND ANALYSIS

Long argues that there was insufficient evidence of his identity as the perpetrator of the 

crimes. There is sufficient evidence for a guilty verdict where “a rational trier of fact could find 

the defendant guilty beyond a reasonable doubt.” People v Tennyson, 487 Mich 730, 735; 790 

NW2d 354 (2010) (citation omitted). “Circumstantial evidence and the reasonable inferences that 

arise from that evidence can constitute satisfactory proof of the elements of the crime.” People v 

Blevins, 314 Mich App 339, 357; 886 NW2d 456 (2016). “[I]t does not matter that the evidence 

gives rise to multiple inferences or that an inference gives rise to further inferences[.]” People v 

Walker, 330 Mich App 378, 382; 948 NW2d 122 (2019) (quotation marks and citation omitted). 

“[I]t is well settled that identity is an element of every offense.” People v Yost, 278 Mich App 

341, 356; 749 NW2d 753 (2008). A perpetrator’s identity can be established by evidence that is 

“circumstantial and sometimes requires reliance on an inference founded on an inference . . . .” 

People v Bass, 317 Mich App 241, 264; 893 NW2d 140 (2016).

When viewing the evidence in the light most favorable to the prosecution, we conclude 

that sufficient evidence was presented for the jury to reasonably conclude that Long’s identity was 

proven beyond a reasonable doubt with respect to the commission of these crimes. Testimony 

supported that, shortly before 7:00 p.m. on November 30, 2017, Wright and Henley had a 

confrontation in a parking lot because of a rivalry between Wright’s gang and Block Squad. 

According to Henley, Wright became “irate” and showed a pistol to Henley. When Henley left 

the parking lot, Wright followed Henley to the Nashville Street home. Testimony supports that

Wright continued to drive by the home, which frightened those who were present and caused

Henley to leave the premises. 

After 7:01 p.m., Wright called Long, whom he considered to be his cousin, multiple times. 

Wright acknowledged that he told Long about the encounter and where it had occurred. Long was 

at an Applebee’s restaurant in Roseville when he spoke to Wright. At 7:22 p.m., Long was seen 

leaving the Applebee’s restaurant. Long got into in a black Buick and drove away. The user of a 

cell phone associated with Long called a cell phone associated with Wright at 7:31 p.m. The user 

of that cell phone answered the call, and the call lasted for “just over five minutes.” Cell-phone 

records establish that Long’s phone was travelling away from Roseville during the phone call. At 

7:53 p.m., the cell phone associated with Long utilized a tower in Detroit that was in the area of 

the crime scene. At 8:33 p.m., a black Buick drove up to the Nashville Street home where Henley 

had been seen earlier in the evening. Shots were fired from the vehicle, which then drove away 

from the scene. Although the phone associated with Long received several calls after 8:40 p.m., 

evidence supports that the phone was either “powered off” or “in some state where it was unable 

to receive service or have any contact with the network.”

Wright, who was at his home on nearby Gunston Street, testified that he heard gunshots. 

Wright looked out the window and saw “police cars.” At that point, Wright laughed, took a photo 

of the “police cars by the store,” and text messaged the photo to Long. Wright also called Long, 
-13-

who informed Wright that he would have to call Wright back. According to Wright, Long 

indicated that he “was in the hood” and that “[i]t was hot right now.” A reasonable jury could find 

that Wright’s laughter and his communications with Long after the shootings supported that 

Wright understood that Long had carried out the drive-by shootings. Indeed, Wright 

acknowledged that he had “bad intentions” when he called Long and asked Long to “shout at”

Henley. Importantly, Wright testified that Long later apologized for getting Wright into a

“predicament,” which the jury could infer reflected Long’s consciousness of guilt.

Analysis later revealed that some of the fired bullets that were located at the scene were 

.40 caliber Smith & Wesson. On December 5, 2017, law enforcement located a black Buick 

outside a home in Detroit. Long was outside, but when one of the officers asked to speak with 

him, Long went inside the home and did not initially answer the door despite officers repeatedly 

knocking. After about 20 to 30 minutes, Long exited the home and was arrested. Search warrants 

were obtained for the Buick and the home where Long was arrested. During a search of the Buick, 

a spent .40-caliber shell casing was found lodged in the vehicle’s rear window. Additionally, two 

.40 caliber shell casings were found under a rear seat in the vehicle. A search of the home’s attic 

uncovered a .40-caliber magazine. Therefore, the physical evidence supported that Long had 

access to the type of ammunition that was used in the shootings.

This Court has held that the prosecution is permitted to prove identity by evidence that is 

entirely “circumstantial and sometimes requires reliance on an inference founded on an 

inference . . . .” Bass, 317 Mich App at 264. We conclude that, when viewing all of the evidence 

in a light most favorable to the prosecution, the jury could have reasonably concluded beyond a 

reasonable doubt that Long committed these crimes.6

B. ADMISSION OF EVIDENCE

Long argues that the trial court erred by permitting Detective-Sergeant Dean Molnar to 

testify that a firearm depicted in a photograph of Long and Chapel was consistent with the bullet 

fragment evidence recovered at the crime scene. Long argues that this testimony and the 

photograph should have been excluded under MRE 403 because any probative value of the 

evidence was outweighed by its prejudicial effect.

1. STANDARDS OF REVIEW

“When the issue is preserved, we review a trial court’s decision to admit evidence for an 

abuse of discretion, but review de novo preliminary questions of law, such as whether a rule of 

evidence precludes admissibility.” People v Chelmicki, 305 Mich App 58, 62; 850 NW2d 612 

(2014). “An abuse of discretion occurs when the trial court chooses an outcome falling outside 

the range of principled outcomes.” People v Buie, 491 Mich 294, 320; 817 NW2d 33 (2012).

“[W]hen . . . preliminary questions of law are at issue, it must be borne in mind that it is an abuse 

 

6

In reaching this conclusion, we did not consider any of the data the was extracted from Chapel’s 

cell phone.
-14-

of discretion to admit evidence that is inadmissible as a matter of law.” Henry, 315 Mich App at 

143 (citation omitted).

2. ANALYSIS

At trial, Detective-Sergeant Molnar testified concerning a firearm that was depicted in a 

photograph of Long and Chapel. In the photograph, Chapel is holding a firearm. DetectiveSergeant Molnar was unable to specifically determine the caliber of the weapon, but he narrowed 

it down to three calibers, including a “9 mm Luger, a .40 caliber Smith & Wesson, or a possible 

.45 auto.” Detective-Sergeant Molnar testified that this was consistent with some of the bulletfragment evidence recovered from the crime scene. 

As an initial matter, we note that the photograph was located after Markel searched the data 

contained on Chapel’s cell phone. For the reasons already discussed, the issue of whether this 

search was lawful has not yet been resolved. While it is unlikely that Long would have standing 

to challenge the search of Chapel’s cell-phone data,

7 we conclude that any constitutional error in 

admitting the photograph would be harmless. An error is not harmless if it affirmatively appears 

that “it is more probable than not that a different outcome would have resulted without the error.” 

People v Lukity, 460 Mich 484, 495; 596 NW2d 607 (1999). “[I]n making this determination, this 

Court . . . focus[es] on the nature of the error in light of the weight and strength of the untainted 

evidence.” People v Feezel, 486 Mich 184, 192; 783 NW2d 67 (2010) (quotation marks and 

citation omitted).

In this case, as already discussed above, there was sufficient evidence for the jury to 

reasonably conclude beyond a reasonable doubt that Long committed these crimes. Moreover, 

evidence of the use of a gun was necessary to prove some of the charged crimes and was relevant 

to proving all of them. Therefore, because the charged crimes involved guns, the jurors would not 

have been shocked by seeing a photograph of Long in the presence of a gun. Additionally, the fact 

that Chapel—not Long—was holding the gun in the photograph arguably makes the photograph 

less prejudicial as it relates to Long. Moreover, based on the questioning of counsel, the jury was 

well aware that Detective-Sergeant Molnar was unable to specifically identify what type of gun 

was in the photograph and even acknowledged that the gun could have been fake. Therefore, even 

if we were to conclude that the photograph was erroneously admitted into evidence, Long would 

not be entitled to a new trial because it is not more probable than not that admission of the evidence 

undermined the reliability of the verdict. See Lukity, 460 Mich at 495.

C. LONG’S STANDARD 4 BRIEF

In a pro se supplemental brief filed pursuant to Supreme Court Administrative Order No. 

2004-6, Long raises additional issues challenging the effectiveness of defense counsel’s assistance. 

 

7

“For an individual to assert standing to challenge a search, the individual must have had a 

legitimate expectation of privacy in the place or location searched, which expectation society 

recognizes as reasonable.” Mahdi, 317 Mich App at 459 (quotation marks and citation omitted).
-15-

Long also argues that he was “actually innocent.” We conclude that none of these arguments have 

merit.

1. ASSISTANCE OF COUNSEL

Long failed to raise an ineffective assistance of counsel claim in the trial court in 

connection with a motion for a new trial or in a proper motion for remand to the trial court for a 

Ginther8hearing. “Therefore, our review is for errors apparent on the record.” See People v 

Abcumby-Blair, ___ Mich App ___, ___; ___ NW2d ___ (2020) (Docket No. 347369); slip op at 

8, lv pending. To demonstrate ineffective assistance of counsel,

a defendant must show: (1) that counsel’s performance fell below an objective 

standard of reasonableness under prevailing professional norms; and, (2) that there 

is a reasonable probability that, but for counsel’s error, the result of the proceedings 

would have been different. A reasonable probability is a probability sufficient to 

undermine confidence in the outcome. [Id. at ___; slip op at 8 (quotation marks 

and citations omitted).]

The effective assistance of counsel is presumed, and “[a] defendant must overcome a strong 

presumption that the assistance of his counsel was sound trial strategy[.]” People v Rosa, 322 

Mich App 726, 741; 913 NW2d 392 (2018) (quotation marks and citation omitted). Long has the 

burden of establishing the factual predicate for his claim of ineffective assistance. People v 

Putman, 309 Mich App 240, 248; 870 NW2d 593 (2015).

a. FAILURE TO PRESENT AN ALIBI DEFENSE

Long argues that he was denied the right to effective assistance of counsel because defense

counsel failed to investigate and present an alibi defense. The failure to reasonably investigate a 

case can constitute ineffective assistance of counsel. People v Grant, 470 Mich 477, 493; 684 

NW2d 686 (2004). When an ineffective-assistance claim is premised on an attorney’s failure to 

call an alibi witness, the defendant must demonstrate that the witness would have provided 

favorable alibi testimony. People v Pickens, 446 Mich 298, 327; 521 NW2d 797 (1994). 

In this case, Long argues that, if certain alibi witnesses had been called to testify at trial, 

he would have been “completely exonerated.” In so arguing, however, Long has not presented 

any evidence or citation to the record to support that he informed defense counsel about the 

witnesses and that counsel nonetheless failed to investigate them. More significantly, Long has 

not provided any affidavits from the alleged witnesses demonstrating what testimony they would 

have provided if called to testify. Without an offer of proof supporting that defense counsel was 

informed about the witnesses or a demonstration of the testimony that those witnesses would have 

provided if called, there is no basis for concluding that defense counsel performed deficiently by 

failing to call the witnesses or that Long was prejudiced by the failure to call the witnesses. 

Consequently, we cannot conclude that counsel’s performance was prejudicial. See Pickens, 446 

Mich at 327 (holding that a defendant’s failure to present evidence that “establish[es] that the alibi 

 

8 People v Ginther, 390 Mich 436; 212 NW2d 922 (1973).
-16-

witness would have testified favorably at trial” prevented a determination that counsel’s 

performance was prejudicial). Accordingly, this ineffective-assistance claim cannot succeed.

b. FAILURE TO MOVE FOR SEVERANCE OF TRIALS

Long next argues that defense counsel was ineffective for failing to move for severance of 

his and Chapel’s trials. “Under MCR 6.121(C), the trial court ‘must sever the trial of defendants 

on related offenses on a showing that severance is necessary to avoid prejudice to substantial rights 

of the defendant.’ ” People v Furline, 505 Mich 16, 20; 949 NW2d 666 (2020). “A defendant’s 

claim of prejudice must be substantiated through concrete facts.” Id. at 21 (quotation marks and 

citation omitted). Additionally,

severance may be warranted when [the] defendants’ mutually exclusive or 

antagonistic defenses create a serious risk of prejudice. But . . . the defenses must 

be irreconcilable and create such great tension that a jury would have to believe one 

defendant at the expense of the other. Defenses are mutually exclusive . . . if the 

jury, in order to believe the core of the evidence offered on behalf of one defendant,

must disbelieve the core of the evidence offered on behalf of the co-defendant. 

Prejudice requiring reversal occurs only when the competing defenses are so 

antagonistic at their cores that both cannot be believed. But incidental spillover 

prejudice, which is almost inevitable in a multi-defendant trial, does not suffice. 

[Furline, 505 Mich at 21 (quotation marks and citations omitted).]

Long asserts that severance was necessary to avoid prejudice because his alibi defense 

conflicted with Chapel’s strategy of not presenting any evidence in his defense. However, Long 

did not present an alibi defense and, for the reasons already discussed, has failed to establish that 

defense counsel was ineffective for failing to present such a defense. Even if Long had presented 

an alibi defense, it is unclear how “the competing defenses [would have been] so antagonistic at 

their cores that both [could not] be believed.” See id. Chapel, like Long, denied that he had any 

involvement in the crimes and argued that the prosecutor could not establish the identity of the 

perpetrators. In the event that Long had presented an alibi defense, Chapel likely would have

benefitted because the prosecution relied on Chapel’s alleged telephone communications with 

Long to support its case against Chapel. It simply would not have benefitted Chapel to interfere 

with Long’s alibi defense. Because Long has failed to establish that there is a reasonable 

probability that a motion for severance of trial would have been granted if counsel had so moved, 

this claim of ineffective assistance of counsel must fail. See People v Buie (On Remand), 298 

Mich App 50, 66; 825 NW2d 361 (2012) (counsel is not ineffective for failing to make a futile

motion).

c. FAILURE TO MOVE FOR APPOINTMENT OF AN EXPERT WITNESS

Long next argues that defense counsel was ineffective for failing to move for the 

appointment of a defense expert who could testify about the analysis of cell-phone records and 

cell-site mapping. Long asserts that he required an expert to demonstrate that the location 

information provided by the cell-phone records in this case is imprecise. We fail to see how 

defense counsel’s failure to obtain and call such an expert affected the outcome of trial. 
-17-

At trial, Stan Brue testified as an expert in the forensic analysis of cell-phone records. Brue 

presented a chart depicting the phone calls between the phones associated with Chapel, Long, and 

Wright in the hours before and after the shootings. Brue also presented a map depicting the cellular 

sites and sectors utilized by the phone associated with Long on the evening of November 30, 2017. 

When explaining the significance of the cellular sites and sectors, Brue testified that the use of a 

certain sector indicated that the cell phone was either “within, or just outside of” the sector. The 

sites and sectors used by Long’s phone in the periods before and after the shootings were consistent 

with use near the crime scene.

On cross-examination by Chapel’s counsel, Brue acknowledged that cell-phone records do 

not reveal specifically where a phone is located. Brue also admitted that factors, such as the 

weather, could cause a phone’s signal to move toward a different tower. After Chapel’s counsel 

completed cross-examination of Brue, counsel for Long elicited testimony from Brue that he could 

not analyze who was utilizing the cell phones at issue in this case. Upon further questioning, Brue 

explained that the records that he analyzed did not show where a phone is located within a sector. 

Brue noted that he could not “say that that phone was on this street corner, on this porch, in this 

church, et cetera.” Long’s counsel then elicited Brue’s agreement that cell-cite mapping “is not 

an exact science when it comes to pinpointing where people are.” Importantly, Brue stated that 

“[i]t doesn’t even approach that science.”

Because defense counsel was able to effectively elicit testimony through cross-examination 

of Brue that cell-phone records are not able to precisely identify a user’s location, Long has not 

demonstrated that an expert was necessary to establish that the location information provided by 

cell-site records is imprecise. Furthermore, as already discussed, the record is replete with 

evidence to support that Long committed the crimes at issue in this case. Accordingly, because 

Long has not demonstrated that counsel was ineffective for failing to obtain and call an expert

witness, Long is not entitled to the relief that he seeks. See Abcumby-Blair, ___ Mich App at ___; 

slip op at 8.

d. REQUEST FOR REMAND

Finally, Long alternatively requests that this Court remand this matter for a Ginther

hearing. Because Long has not set forth any facts that would require development of a record to 

determine if defense counsel was ineffective, we deny Long’s request. MCR 7.211(C)(1)(a).

2. ACTUAL INNOCENCE

Finally, Long’s assertion of actual innocence is not an independent basis for appellate 

relief. This assertion is premised on Long’s contention that his actual innocence would have been 

demonstrated if counsel had moved for a separate trial and presented the evidence discussed in the 

previous issues. As explained earlier, sufficient evidence established Long’s identity as one of the 

perpetrators, and Long has not demonstrated that counsel was ineffective for failing to present an 

alibi defense, failing to request appointment of an expert witness, or failing to move for a separate 

trial. Therefore, Long’s claim of actual innocence is unavailing.
-18-

IV. CONCLUSION

With respect to Docket No. 348244, we remand to the trial court for proceedings consistent 

with this opinion. We do not retain jurisdiction. With respect to Docket No. 349245, we affirm.

/s/ Jonathan Tukel 

/s/ Kathleen Jansen 

/s/ Thomas C. Cameron 
Court of Appeals, State of Michigan

ORDER

People v Demetrius Chapel

Docket No. 348244

LC No. 18-004779-01-FC

Jonathan Tukel

Presiding Judge

Kathleen Jansen

Thomas C. Cameron

Judges

Pursuant to the opinion issued concurrently with this order, this case is REMANDED for further 

proceedings consistent with the opinion of this Court. We do not retain jurisdiction. 

Proceedings on remand in this matter shall commence within 56 days of the Clerk’s certification 

of this order, and the proceedings shall be given priority on remand until they are concluded. As stated in 

the accompanying opinion, we remand to the trial court for an evidentiary hearing concerning the 

circumstances surrounding the seizure of Demetrius Chapel’s cell phone and the circumstances 

surrounding law enforcement’s search of the phone in relation to the crimes at issue in this case. The trial 

court must decide whether the seizure of the phone and the search of the phone were lawful. If necessary, 

the trial court must also decide whether the exclusionary rule applies with respect to the cell-phone data 

and the cell-phone records associated with Chapel’s phone. The proceedings on remand are limited to 

these issues.

The parties shall promptly file with this Court a copy of all papers filed on remand. Within seven 

days after entry, appellant shall file with this Court copies of all orders entered on remand. 

The transcript of all proceedings on remand shall be prepared and filed within 21 days after 

completion of the proceedings. 

/s/ Jonathan Tukel

Presiding Judge

April 8, 2021