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

revision until final publication in the Michigan Appeals Reports.

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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-Appellant,

UNPUBLISHED

September 21, 2023

v No. 364083

Oakland Circuit Court

FLOYD RUSSELL GALLOWAY, JR., LC No. 2019-272265-FC

Defendant-Appellee.

Before: GADOLA, P.J., and CAVANAGH and K. F. KELLY, JJ.

PER CURIAM.

In this interlocutory appeal, the prosecution appeals by leave granted1an order suppressing 

evidence derived from a tip that was communicated to the Farmington Hills Police Department in 

violation of defendant’s attorney-client privilege and right to due process. We affirm.

Defendant is charged with first-degree premeditated murder of Danielle Stislicki. Stislicki 

was last seen on December 2, 2016, leaving her workplace with defendant, a former security guard

for the building, in the passenger seat of her vehicle. Stislicki did not attend a previously scheduled 

engagement that evening and has not been heard from since. Stislicki’s parents reported her 

missing after they discovered her vehicle at her apartment parked in its normal spot the next day, 

along with her purse, identification, and credit cards.

Gary Mayer was the chief of police for the Troy Police Department at all times relevant to 

this case. On the evening of December 9, 2016, Mayer received a phone call from his long-time 

friend Jim Hoppe. Hoppe, a former FBI agent, said he had information about a security guard and 

a homicide, but could not share it unless his identity was kept confidential. Because of the 

substantial media attention surrounding Stislicki’s disappearance, Mayer understood which case 

Hoppe was referring to. Mayer agreed to do his best to maintain Hoppe’s confidentiality. 

Although Hoppe did not explain how he acquired the information at the time of this phone call, 

 

1 People v Galloway, unpublished order of the Court of Appeals, entered February 9, 2023 (Docket 

No. 364083).
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Mayer assumed Hoppe was sharing information Hoppe learned in his role as a polygraph operator 

for defense attorneys. After ending his call with Hoppe, Mayer contacted the Farmington Hills 

Police Department (FHPD) and relayed Hoppe’s information to FHPD chief of police Charles 

Nebus. Mayer insisted that his source could not be identified and did not share anything about the 

source with Nebus.

Without identifying Mayer’s role in relaying the tip, Nebus recorded the following 

information on a tip sheet:

A caller said the security guard did it. He drove the victims [sic] car from 

his house in Berkley to her apt., then walked to Tim Horton’s at 10 and Halsted 

where he called Shamrock cab or something that sounds like Shamrock where he 

received a cab ride to within walking distance from his work where his car was 

parked. There should be evidence on or in the victims [sic] car. The subject threw 

the victims [sic] keys in a grassy area by the freeway while walking to Tim 

Horton’s. The fitbit should be near the keys. The victims [sic] cell phone was 

placed in the trash inside Tim Horton’s. The victims [sic] body should be inside a 

beige and brown comforter. Upon further questioning, the caller had no further 

information and wished to remain anonymous. 

FHPD personnel investigated the tip that very evening and recovered Stislicki’s keys and Fitbit, 

as well as surveillance footage of defendant’s movements on the night of Stislicki’s disappearance.

The lengthy evidentiary hearing focused primarily on what various officers and prosecutors 

knew regarding the source of the tip at any given time throughout the investigation. Although the 

Oakland County Prosecutor’s office became aware that the tip likely came from a privileged source 

as early as January or February 2017, no steps were taken to mitigate the breach of attorney-client 

privilege, nor did the FHPD attempt to identify Mayer’s source. The issue was all but ignored 

until the Attorney General took over the case in early 2019. Special assistant attorney general 

Jaimie Powell Horowitz recognized that the identity of the tipster would present a problem for the 

prosecution and began to question Mayer about the tipster. When Mayer continued to refuse to 

name his source, Powell Horowitz initiated investigative subpoena proceedings and obtained an 

order compelling Mayer to reveal his source. Mayer was left with no choice but to name Hoppe 

and acknowledge that Hoppe was a polygraph operator for the attorney representing defendant in 

a separate matter.

The trial court determined that the government violated defendant’s right to due process 

and that suppression of the evidence derived from the tip was necessary. It reasoned that Mayer 

was objectively aware of an attorney-client relationship, and Nebus was aware or should have been 

aware based on the totality of the circumstances. It also found that the government intentionally 

intruded into the privileged relationship by using the information shared by Hoppe to further its 

investigation, and that this intrusion caused defendant actual and substantial prejudice. The 

prosecution now challenges the trial court’s decision to suppress the evidence.

We review de novo both a trial court’s suppression of evidence and underlying questions 

of constitutional law. People v Moorman, 331 Mich App 481, 484-485; 952 NW2d 597 (2020). 
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The trial court’s factual findings are reviewed for clear error, which exists if this court is left with 

a definite and firm conviction that the trial court made a mistake. Id. at 485.

This Court recently had cause in People v Joly, 336 Mich App 388; 970 NW2d 426 (2021), 

to consider the appropriate legal framework for determining whether breach of a defendant’s 

attorney-client privilege rises to the level of violating due process. Joly acknowledged that the 

attorney-client privilege is firmly established in both common law and legislation, but is not a 

constitutional right. Id. at 397-399. Even so, caselaw across the country has long recognized that 

an egregious violation of the attorney-client privilege might be part of a broader claim that the 

government has violated a defendant’s due process rights. Id. at 399-400. To determine if a breach 

of the attorney-client privilege rises to that level, Joly adopted the reasoning in United States v 

Voigt, 89 F3d 1050 (CA 3, 1996), which held that “only a finding of ‘outrageousness’ would 

warrant exclusion of evidence for a violation of due process.” Joly, 336 Mich App at 401, 404. 

To establish outrageousness, the defendant must prove “ ‘(1) the government’s objective 

awareness of an ongoing, personal attorney-client relationship between [the attorney] and the 

defendant; (2) deliberate intrusion into that relationship; and (3) actual and substantial prejudice.’ 

” Id. at 401, quoting Voigt, 89 F3d at 1067 (alteration in original). In reviewing this issue, this 

Court must exercise appropriate judicial restraint before reaching the extraordinary conclusion that 

the government action at issue was so offensive that it violated the defendant’s constitutional right 

to due process. Joly, 336 Mich App at 404. See also Voigt, 89 F3d at 1065 (observing that dueprocess claims premised on outrageous investigative techniques are only viable in the most 

extreme cases).

Concerning the first prong of the Voigt test, the prosecution maintains that none of the 

FHPD officers involved in the investigation had actual knowledge or reason to believe that the tip 

originated from a privileged source at the time they acted on the information and discovered 

incriminating evidence. In support of this position, the prosecution argues that Mayer’s actions 

cannot be attributed to the government because he took no part in the investigation—he was 

distinct from the investigating agency and, according to the prosecution, none of his actions 

regarding the tip differed from what a private citizen could have done in the same circumstances. 

Like the trial court, we reject the prosecution’s attempt to exclude Mayer’s actions from our dueprocess analysis.

Regardless of the fact that Mayer was not affiliated with the FHPD, we must consider the 

totality of the circumstances and, thus, cannot simply ignore the fact that Mayer was a high-ranking 

law-enforcement officer with many decades of experience and at least some knowledge of 

attorney-client privilege. See Joly, 336 Mich App at 399 (noting that courts look to the totality of 

the circumstances in analyzing whether failure to observe fundamental fairness amounts to 

violation of due process). Mayer testified that he understood that communications between an 

attorney and client could not be shared and that the privilege extended to professionals employed 

by the attorney. Thus, assuming Mayer recognized that Hoppe acquired the information in the 

course of his work as a private polygraph operator for the defense, Mayer would be aware that use 

of Hoppe’s tip in the investigation would unlawfully breach defendant’s attorney-client privilege. 

Such knowledge clearly distinguishes Mayer from the average citizen who might unwittingly share 

privileged information. 
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Moreover, we infer that the nature of Mayer’s employment was a key factor in Hoppe’s

decision to entrust Mayer with the privileged information. Mayer testified that Hoppe was clearly 

emotional and conflicted about his disclosure, but felt the need to share the information because 

of an expected snowstorm. The only rational conclusion that can be drawn from these facts is that 

Hoppe was not telling Mayer what he learned during defendant’s polygraph examination because 

of their longstanding friendship, but because Mayer was in a position to do something to preserve 

important evidence from getting lost or destroyed from the snow. This again distinguishes Mayer 

from the average citizen.

While we recognize that Mayer had no formal affiliation with the investigation, the 

prosecution’s reliance on caselaw rejecting Brady2claims premised on evidence possessed by 

“uninvolved” government agencies is simply unavailing. The prosecution directs this Court’s 

attention to United States v Avellino, 136 F3d 249, 255 (CA 2, 1998), wherein the federal court 

reasoned that

knowledge on the part of persons employed by a different office of the government 

does not in all instances warrant the imputation of knowledge to the prosecutor, for 

the imposition of an unlimited duty on a prosecutor to inquire of other offices not 

working with the prosecutor’s office on the case in question would inappropriately 

require us to adopt a monolithic view of government that would condemn the 

prosecution of criminal cases to a state of paralysis. [Quotation marks and citation 

omitted.]

This passage makes clear why the same reasoning cannot be applied here. 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 second-hand tip, at any time.

The trial court did not clearly err by finding that Mayer had objective awareness of an 

ongoing attorney-client relationship. When he received the call from Hoppe, Mayer knew that 

Hoppe worked as a polygraph operator. Although Mayer initially testified that he was unsure 

whether Hoppe had already retired from the FBI at the time of the call, he later conceded that he 

knew Hoppe was then working for defense attorneys. It is immaterial that Hoppe did not expressly 

tell Mayer how he acquired the information, because the objective nature of the first Voigt prong 

does not require actual knowledge. See Voigt, 89 F3d at 1069 (reasoning that the due process 

claim failed when record was devoid of evidence that the government “was or should have been

aware of a personal attorney-client relationship”) (emphasis added). See also Prentis Family 

Foundation v Barbara Ann Karmanos Cancer Institute, 266 Mich App 39, 47-48; 698 NW2d 900 

(2005) (explaining that objective knowledge standard is implicated by “knew or should have 

known” language). Coupled with Hoppe’s unexplained insistence on confidentiality, Mayer 

clearly should have known that Hoppe was sharing information he learned while acting as an agent 

 

2 Brady v Maryland, 373 US 83; 83 S Ct 1194; 10 L Ed 2d 215 (1963).
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of defense counsel. Mayer, at minimum, had objective awareness of the attorney-client 

relationship all along.

On the other hand, the trial court’s determination that Nebus likewise had objective 

awareness is more tenuous. The trial court’s finding regarding Nebus was premised on four 

factors: (1) Nebus recognized that Mayer’s call regarding the “confidential” tip was unusual and 

urgent; (2) Nebus did not follow standard protocol for preserving the information when he 

excluded Mayer’s name from the tip sheet and simply labeled the tip as anonymous; (3) Nebus 

later sought legal counsel regarding the tip; (4) and Nebus felt pressure to disclose Mayer’s 

involvement to the Oakland County Prosecutor’s office, thereby demonstrating “he knew what he 

was doing was wrong.”

Confidential tips are not unusual in criminal investigations, and the government is often 

permitted to conceal the identity of confidential informants. See People v James, 327 Mich App 

79, 90-91; 932 NW2d 248 (2019) (discussing that probable cause may be based, in part, on 

information from a confidential informant); People v Henry (After Remand), 305 Mich App 127, 

156; 854 NW2d 114 (2014) (stating that the government is not obligated to identify confidential 

informants). There are any number of reasons a tipster might wish to remain unknown. To name 

but a few, the tipster might fear retribution, feel a degree of guilt about implicating a loved one, 

believe he or she might be implicated in the crime, or wish to avoid being labeled a “snitch.” 

Without knowledge that the source was a private polygraph operator, the request for anonymity 

was not inherently suggestive of an ongoing attorney-client relationship or other form of privilege. 

In our view, the facts cited by the trial court imply only that Nebus suspected the tip was privileged. 

But there is a significant distance between mere suspicion that there was something suspicious 

about the tip and objective awareness that the tipster was an agent of defense counsel. Nonetheless, 

the trial court did not err with respect to its analysis of Mayer’s knowledge, and that was sufficient 

to establish the first prong of the Voigt test.

The next prong of the Voigt test requires deliberate intrusion into the attorney-client 

relationship. Joly, 336 Mich App at 401. We agree with the trial court that the record demonstrates 

such deliberate intrusion. As to this issue, the underlying circumstances are analogous to Joly. In 

that case, the Jackson Police Department was investigating a suspected arson after the defendant’s 

home was intentionally set on fire. Id. at 392. The defendant retained the Abood Law Firm as 

defense counsel, and the firm proactively advised the prosecutor’s office of its representation 

before charges were filed. Id. When defendant’s tablet computer was inspected by the Michigan 

State Police (MSP) forensic laboratory, a technician discovered an e-mail between the defendant 

and an employee of the Abood Law Firm in which the people to whom the defendant had given 

incriminating evidence were identified. Id. at 393. Although the e-mail, on its face, appeared to 

be protected by attorney-client privilege, the technician provided it to the investigating detective, 

who then interviewed the people named in the e-mail and recovered the incriminating evidence. 

Id. Relative to second part of the Voigt test, this Court explained:

[I]t was not the apparent inadvertent discovery of the privileged e-mail that is 

particularly troublesome here, but rather what happened after the discovery. After 

learning of the privileged e-mail, the detective did not attempt to segregate the email, turn the case over to another detective or a different law-enforcement office, 

seek guidance from the court officer who signed the warrant, or work with the 
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prosecutor to develop some other measure to separate the investigation from the 

privileged information that the detective learned from reading the e-mail (and could 

not realistically unlearn). Instead, the detective doubled down on the breach and 

used the privileged information to further his investigation of defendant. And the 

information in the e-mail was not incidental or only marginally material, but instead 

provided the key information—the location—that the detective did not previously 

have about the lawnmower and gas can. There was, in other words, a direct link 

between the detective’s reading of the e-mail and his retrieval of both pieces of 

evidence. This can only be characterized as a deliberate intrusion into the substance 

of the attorney-client relationship. [Id. at 405-406.]

The same troubling response occurred in this case. Despite objective awareness that 

Hoppe’s tip was protected by attorney-client privilege, Mayer immediately turned the privileged 

information over to the investigating agency with the expectation that the FHPD would investigate 

the tip and recover important evidence before it could be lost or destroyed by inclement weather. 

This is precisely what occurred; Nebus rallied his troops, the locations identified in the tip were 

searched, the FHPD found Stislicki’s keys and Fitbit, and evidence regarding defendant’s 

movements on the night of her disappearance was discovered. Like in Joly, this can “only be 

characterized as deliberate intrusion into the substance of the attorney-client relationship.” Id. at 

406.

The prosecution emphasizes that the FHPD had no reason to believe the tip was privileged 

when it followed-up on the information and again 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. 

Joly theorized that a government actor who comes across privileged information should take 

mitigating steps like segregation of the information, transferring the case to a different investigator 

or office, or seeking guidance from a court officer or prosecutor. Id. at 405. Here, Mayer would 

not need to take such measures to avoid deliberate intrusion into defendant’s attorney-client 

relationship. Had he simply held his silence, the FHPD’s investigation would have continued in 

its normal course, free of any taint from Hoppe’s disclosure of privileged information. But like 

the detective in Joly, Mayer did the exact opposite and instead perpetuated the breach of privilege. 

Mayer gave the information to the FHPD to further its investigation in disregard of defendant’s 

rights. Regardless of the fact that Mayer’s own police department was otherwise uninvolved in 

the investigation, the plain reality is that a government actor recognized a breach of the attorneyclient privilege and then took intentional steps to exploit it and thereby obtain incriminating 

evidence.

Although the prosecution does not challenge the trial court’s finding regarding the final 

part of the Voigt test, it is readily apparent that the trial court did not err by concluding that the 

government misconduct resulted in actual and substantial prejudice to defendant. See id. at 401. 

While it is true that defendant was already suspected in Stislicki’s disappearance before the tip 

came in on December 9, 2016, that was principally because he was the last person seen with her, 

there was evidence suggesting that she was in his home, and defendant appeared nervous and lied 

about his whereabouts when he was questioned. People v Galloway, 335 Mich App 629, 634; 967 
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NW2d 908 (2020).

3

 Investigation of the privileged tip led to discovery of critical evidence that 

defendant tried to dispose of Stislicki’s belongings shortly after she was last seen and conceal 

doing so, greatly strengthening the case against him. The tip and derivative evidence was also 

incorporated in numerous search warrant affidavits, raising further questions about the extent of 

the taint in this case. Again, in line with Joly, the third element is easily satisfied here. Joly, 336 

Mich App at 406. Because each prong of the Voigt test is satisfied, defendant demonstrated 

outrageous government conduct that violated his right to due process. See id. at 399-401.

Having found a violation of due process, the question of the appropriate remedy remains. 

See id. at 400. “When the violation occurs in the context of gathering pretrial evidence, courts 

have developed a remedy referred to as the ‘exclusionary rule.’ ” Id. Under the exclusionary rule, 

“evidence that was obtained as a result of a fundamentally unfair investigatory process” is 

inadmissible at trial. Id. As the Joly Court noted, the exclusionary rule is designed to “compel 

respect for constitutional rights, deter violations of those rights, and preserve judicial integrity.” 

Id.

The prosecution argues that suppression of evidence was not an appropriate remedy in this 

instance because the FHPD acted in good faith reliance on the tip, such that application of the 

exclusionary rule would not advance its most critical purpose—deterrence of police misconduct. 

As defendant correctly points out, the good-faith exception to the exclusionary rule has been 

developed almost exclusively in the Fourth Amendment context concerning unreasonable searches

and seizures, making its application in this context uncertain. The limited scope of the exception 

is underscored by the fact that only one of the many authorities cited by the prosecution regarding 

good-faith police activities addresses a legal issue distinct from Fourth Amendment principles.

That single case is Michigan v Tucker, 417 US 433; 94 S Ct 2357; 41 L Ed 2d 182 (1974), 

in which the Supreme Court considered whether the defendant was entitled to exclusion of a 

witness identified in the course of an interrogation that did not violate the defendant’s Fifth 

Amendment right against compelled self-incrimination, but failed to fully satisfy the procedural 

safeguards designed to safeguard that right. At the outset of its analysis, the Supreme Court 

prudently observed:

Just as the law does not require that a defendant receive a perfect trial, only 

a fair one, it cannot realistically require that policeman [sic] investigating serious 

crimes make no errors whatsoever. The pressures of law enforcement and the 

vagaries of human nature would make such an expectation unrealistic. Before we 

penalize police error, therefore, we must consider whether the sanction serves a 

valid and useful purpose. [Id. at 446.]

 

3 This was a previous appeal in this case regarding whether the prosecution could introduce 

evidence of defendant’s prior conviction to prove motive, identity, or a common plan. This Court 

held that defendant’s prior conviction could not be introduced because it was too dissimilar to the 

instant charge and thus would constitute inadmissible character evidence.
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The Court noted that its search-and-seizure precedent made clear that deterrence of police 

misconduct was the primary purpose of the exclusionary rule. Id. In other words, the exclusionary 

rule does not try to compensate a defendant whose rights have been violated, but rather to prevent 

police misconduct in the first instance by removing the incentive to resort to unlawful methods. 

Id. The Court then continued:

By refusing to admit evidence gained as a result of such conduct, the courts hope 

to instill in those particular investigating officers, or in their future counterparts, a 

greater degree of care toward the rights of an accused. Where the official action 

was pursued in complete good faith, however, the deterrence rationale loses much 

of its force. [Id. at 447.]

The Supreme Court ultimately determined that the witness the defendant identified during his 

interrogation should not be excluded from trial because the police acted in accordance with thenexisting precedent when they questioned the defendant. Id. The Court also reasoned that the 

exclusionary rule was alternatively justified in the context of certain Fifth Amendment violations 

because the Self-Incrimination Clause endeavors to avoid convictions on the basis of evidence that 

is coerced and, therefore, inherently untrustworthy. Id. at 448-449. Yet the defendant in Tucker

was not exposed to coercive pressures, nor did he make an unreliable confession. Id. at 448-449. 

Because none of the goals of the exclusionary rule would be advanced in Tucker, there was simply 

no reason to apply it.

The reasoning in Tucker is persuasive in this context as well, though not in the 

prosecution’s favor. The prosecution again focuses too narrowly on what members of the FHPD 

knew at the time they acted on the tip. The deterrent purpose of the exclusionary rule is plainly 

implicated by willful police 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. Allowing the evidence derived from Mayer’s misconduct to be used at trial on 

the basis of the FHPD’s “good faith” would completely undermine the exclusionary rule. Rather 

than deterring police misconduct, such a ruling could actually encourage misconduct where FHPD

officers could use information obtained in violation of attorney-client privilege, as long as Mayer 

never revealed the source. We conclude that the trial court did not err by excluding the evidence 

derived from Mayer’s disclosure of the privileged information.

That said, we agree with the prosecution that the trial court’s ruling regarding the extent of 

evidence to be excluded was over expansive as it relates to two categories of evidence: Stislicki’s 

cell phone and “forensic data retrieved therefrom.” Concerning the first item, the error is harmless 

because there is no indication in the record that Stislicki’s cell phone was ever located. The tip 

reported that the cell phone was discarded in a trash can at Tim Hortons, and the trash was 

apparently emptied before the police searched that location on December 9, 2016. Inasmuch as 

Stislicki’s cell phone is not in the possession of the FHPD or prosecution, it could not be admitted 

in evidence in any event. As to the second item, the “forensic data” retrieved from Stislicki’s cell 

phone, it is unclear what specific evidence the trial court was referring to. Because Stislicki’s 

phone was never recovered, no data could be extracted directly from the device. But to the extent 

that the trial court’s ruling incorporated Stislicki’s cell phone records or the pen register from her 

account, those documents were procured by search warrants executed before the privileged 

information was shared with the FHPD and not as a product of outrageous government misconduct. 
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Such evidence should not be excluded on the basis of the due-process violation at issue in this 

appeal. We therefore remand for the trial court to amend its opinion and order accordingly. In all 

other respects, we affirm. We do not retain jurisdiction. 

Affirmed.

/s/ Michael F. Gadola

/s/ Mark J. Cavanagh 

/s/ Kirsten Frank Kelly