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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UNPUBLISHED

October 12, 2017

v No. 332595

Wayne Circuit Court

ROSOLINO GAGLIO, LC No. 16-002701-01-FH

Defendant-Appellee.

Before: SHAPIRO, P.J., and HOEKSTRA and M. J. KELLY, JJ.

PER CURIAM.

The prosecution appeals as of right the circuit court’s order dismissing the case. 

Defendant was charged with carrying a concealed weapon (CCW), MCL 750.227. Because the 

evidence was sufficient to support the district court’s bindover decision and the circuit court 

erred by suppressing the gun evidence, we reverse and remand for reinstatement of the CCW 

charge.

According to the evidence presented at the preliminary hearing, on January 15, 2016, 

Officer Gregory Brewster of the Trenton Police Department stopped defendant in the parking lot 

of a strip mall. This stop led to defendant’s arrest for larceny involving salt bags purportedly 

taken by defendant from an alley near an Ace Hardware. Following defendant’s arrest, his 

vehicle was towed to a nearby towing yard by Timothy Lyons, who discovered a gun in the 

backseat of the truck. Lyons reported the discovery to the police, and defendant was 

subsequently charged with CCW. Based on the evidence at the preliminary hearing, the district 

court bound defendant over for trial on the CCW charge. 

In the circuit court, defendant filed a motion to quash the bindover. Defendant argued

that the gun should have been suppressed at the preliminary hearing under MCR 6.110(D)(2) 

because Brewster lacked probable cause to arrest defendant for larceny and thus the fruits of the 

illegal arrest should have been suppressed. Absent the gun evidence, defendant asserted that the 

evidence was insufficient to support a bindover for CCW. The circuit court granted defendant’s 

motion to quash the CCW bindover, concluding that Brewster lacked probable cause to arrest 

defendant for larceny. The prosecutor now appeals as of right. 

The prosecution contends that the circuit court erred when it quashed the information and 

dismissed the case. In particular, the prosecutor asserts that, contrary to the circuit court’s 

conclusions, the gun evidence should not have been suppressed because Brewster had probable 
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cause to arrest defendant for larceny. According to the prosecutor, when the gun evidence is 

considered, it is clear that the district court did not abuse its discretion by binding defendant over 

for trial on the CCW charge. We agree.

“A trial court’s decision to quash an information is reviewed for an abuse of discretion.” 

People v March, 499 Mich 389, 397; 886 NW2d 396 (2016). “An abuse of discretion occurs 

when the court chooses an outcome that falls outside the range of reasonable and principled 

outcomes.” People v Unger, 278 Mich App 210, 217; 749 NW2d 272 (2008). When 

considering whether evidence should be suppressed, “the application of a constitutional standard 

to uncontested facts” is reviewed de novo.” People v Attebury, 463 Mich 662, 668; 624 NW2d 

912 (2001). “We review de novo whether the Fourth Amendment was violated and whether an 

exclusionary rule applies.” People v Hyde, 285 Mich App 428, 436; 775 NW2d 833 (2009).

“In order to bind a defendant over for trial in the circuit court, the district court must find 

probable cause that the defendant committed a felony.” People v Seewald, 499 Mich 111, 116; 

879 NW2d 237 (2016). Probable cause exists when the evidence presented is “sufficient to 

cause a person of ordinary prudence and caution to conscientiously entertain a reasonable belief 

of the accused’s guilt.” People v Yost, 468 Mich 122, 126; 659 NW2d 604 (2003) (quotation

marks and citation omitted). The prosecution “need not establish beyond a reasonable doubt that 

a crime was committed;” rather, the prosecutor “need present only enough evidence on each 

element of the charged offense to lead a person of ordinary prudence and caution to 

conscientiously entertain a reasonable belief of the defendant’s guilt.” People v Perkins, 468 

Mich 448, 452; 662 NW2d 727 (2003) (quotation marks, brackets, and citations omitted). 

In this case, defendant has been charged with CCW. The parties do not dispute that—if 

the gun recovered in defendant’s truck is considered—the evidence was sufficient to bind 

defendant over to circuit court for trial on a charge of CCW. Instead, the real issue before us is 

whether the gun evidence should have been suppressed under MCR 6.110(D)(2) because the 

discovery of the gun resulted from an unlawful arrest for larceny. In other words, based on the 

facts and circumstances within Brewster’s knowledge, we must decide whether there was 

probable cause to support a warrantless arrest at the time Brewster arrested defendant for 

larceny. 

“In order to lawfully arrest a person without a warrant, a police officer must possess 

information demonstrating probable cause to believe that an offense has occurred and that the 

defendant committed it.” People v Cohen, 294 Mich App 70, 74-75; 816 NW2d 474 (2011) 

(quotation marks and citation omitted). “Probable cause to arrest exists where the facts and 

circumstances within an officer’s knowledge and of which he has reasonably trustworthy 

information are sufficient in themselves to warrant a man of reasonable caution in the belief that 

an offense has been or is being committed.” Id. at 75 (quotation marks and citation omitted). 

“This probable cause standard is a practical, nontechnical conception judged from the totality of 

the circumstances before the arresting officers.” Id. (quotation marks and citation omitted). If 

evidence is obtained as a result of an illegal warrantless arrest, typically the evidence must be

suppressed as fruit of the poisonous tree. People v Thomas, 191 Mich App 576, 581; 478 NW2d 

712 (1991). 
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In the instant case, there are numerous facts and circumstances within Brewster’s

knowledge that were sufficient to warrant a reasonable person to believe that defendant had 

committed larceny. At the time that Brewster arrested defendant, Brewster was personally aware 

that there had been thefts at the strip mall recently; indeed, he had made an arrest the week 

before when he caught someone stealing pallets from the Tractor Supply Company. When 

Brewster encountered defendant, it was about 2:00 a.m. The stores in the strip mall were closed, 

and the parking lot was empty except for defendant. As Brewster watched, defendant drove his 

vehicle around the side of the building, where pallets were kept, toward an alley running behind 

the businesses. Based on his observation of the vehicle’s headlights, Brewster noted that the 

vehicle was stationary for a period of time. Brewster waited for defendant’s vehicle to emerge 

from the other side, near the Ace Hardware. When the vehicle emerged, Brewster stopped the 

vehicle and spoke to defendant.

Despite the late hour, defendant told Brewster that he was “looking for salt.” When 

Brewster pointed out that the stores were closed, defendant indicated that he was looking for salt 

so that he could come back in the morning. Then, without additional questioning or prompting

from Brewster, defendant volunteered that he “didn’t take any of the salt that was on the side of 

the business.” In the open bed of defendant’s truck, Brewster saw two fifty-pound bags of Safe 

Step Rock Salt. Further, there were “little particles of snow and ice” in the truck, but this snow 

only appeared in the area near the bags of salt. Brewster also walked around the side of the 

building, to the area where defendant had driven, and he found pallets holding salt bags. These 

salt bags were the “exact same” brand and size as those found in defendant’s truck. 

Additionally, there was snow on these salt bags, but some of the snow appeared to have been 

“disturbed.” At that time, Brewster returned to defendant’s vehicle and placed defendant under 

arrest for stealing bags of salt. 

All of these facts, taken together and judged from the totality of the circumstances, were 

enough to support probable cause for arrest. Given all the information available to Brewster at 

that time, a prudent person would believe that defendant had committed larceny of the salt bags. 

It follows that the arrest was lawful, meaning that the circuit court erred by concluding that the 

gun evidence should be suppressed as fruit of an illegal arrest. Further, considering the gun 

discovered in defendant’s vehicle, the district court did not abuse its discretion by binding 

defendant over for trial on a charge of CCW, and thus the circuit court abused its discretion by 

quashing the information. 

Reversed and remanded for reinstatement of the CCW charge and for further proceedings 

not inconsistent with this opinion. We do not retain jurisdiction.

/s/ Douglas B. Shapiro

/s/ Joel P. Hoekstra

/s/ Michael J. Kelly