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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- Appellant, UNPUBLISHED October 12, 2017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

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- FH

Defendant

- Appellee.

Before: S HAPIRO

, P .J., and H OEKSTRA and M. J. K ELLY , JJ.

P ER C URIAM

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The prosecution appeals as of right the circuit court ’ s order dismiss ing the case

. Defendant was charged with carry ing 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, w e 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 Tim othy Lyons, who discovered a gun in the

backseat of the truck. Lyons reported the discovery to the police, and d efendant was subsequently charged with CCW. Based on th e evidence at the preliminary hearing , t he district

court bound defendant over for trial on the CCW charge

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In the circuit court, defen dant filed a motion to quash the bindover. D efendant 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. A bsent the gun evidence, defendant assert ed 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 prosecutio n 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- 2

- 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 di scretion 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 N W2d 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 constitutiona l 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, 43 6; 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). Th e 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 en tertain 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. T he parties do not dispute that

— if the gun recovered in defendant’s truck is considered

— the evidence was sufficient to bind

defen dant over to circuit court for trial on a charge of CCW. Instead, the real issue before us is whether the gun evidence should hav e 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 sup port a warrantless arrest at the time Brewster arrested defendant for larceny

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“ 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 t hat 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)

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“ This probable cause standard is a pra ctical, 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).- 3

- 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 ar ound th e side of the building , where pallets were kept, toward an alley running behind

the businesses. B ased 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 veh icle 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 co uld come back in the morning. Then, w ithout additional questioning or prompting from Brewster, defendant volunteered that he “ didn ’ t tak e 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 t he area near the bags of salt. Brewster also walked around the side of the

b uilding , 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.

A ll of these fact s, taken together and judged from the totality of the circumstances, were enough to support probable cause for arrest. G iven 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, c onsidering 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 proceedi ngs not inconsistent with this opinion . We do not retain jurisdiction.

/s/ Douglas B. Shapiro

/s/ Joel P. Hoekstra /s/ Michael J. Kelly