COA determines issue preclusion justified granting motion to suppress where State did not produce witness at prior suppression hearing.
State v. Roosevelt L. Spencer, 2025AP1256, 10/20/26, District III (not recommended for publication); case activity
The COA affirmed the circuit court’s order granting the defendant’s motion to suppress based on issue preclusion where his motion was granted in a prior case, which was dismissed without prejudice, because the State’s only witness did not appear at the evidentiary hearing. The COA found the criteria for issue preclusion were established – that the matter was actually litigated previously and that applying issue preclusion comported with principles of fundamental fairness.
Police stopped a vehicle driven by Roosevelt Spencer, searched his car pursuant to Act 79, and seized contraband that resulted in charges for possessing methamphetamine with intent to deliver and possessing THC. Spencer moved to suppress the evidence, arguing that the officers did not have reasonable suspicion or probable cause to extend the traffic stop to search the vehicle. The State’s only witness, a police officer, did not appear at the evidentiary hearing. The circuit court granted Spencer’s motion to suppress because the State did not subpoena the witness until the day before the hearing, which it determined was negligent. (¶¶ 2-5). The State filed a motion to reconsider, which the circuit court denied because “you just say that you were negligent and you need more time and we reschedule. They have not done that.” The State did not appeal the circuit court’s order granting the motion to suppress or denying the motion to reconsider. On the State’s motion, the court dismissed the charges against Spencer without prejudice. (¶ 6).
Shortly thereafter, the State refiled the charges against Spencer based on the same factual allegations. Spencer filed a motion to suppress based on issue preclusion because the suppression issue was “actually litigated” in the first case. At a hearing on the motion, the State conceded it was negligent by failing to timely subpoena the officer, but argued the suppression issue was not actually litigated because the circuit court did not grant the motion to suppress on the merits. (¶¶ 7-8).
The circuit court granted Spencer’s motion to suppress based on issue preclusion. It found the suppression issue was actually litigated because the court granted the motion based on the State failing to present evidence. (¶¶ 9-10). The circuit court also determined fundamental fairness justified applying issue preclusion because the State could have sought relief from the prior court’s order granting the motion to suppress but failed to do so. Further, the court was concerned that if issue preclusion did not apply, the State could be incentivized when it loses a suppression motion to dismiss the case without prejudice and relitigate the issue in the hope that another judge might be more amenable. (¶¶ 11-13).
On appeal, the State argued that the suppression issue was not actually litigated in the initial case. The COA noted that an issue is “actually litigated” if it is “properly raised, by the pleadings or otherwise, and is submitted for determination, and is determined.” (¶ 17). The COA found that the issue was actually litigated because “Spencer’s motion to suppress sufficiently raised a constitutional challenge to the evidence derived from the seizure of his person and the search of his vehicle, such that the State then had the burden to prove that the seizure and search were lawful.” (¶ 20). Because the State did not produce evidence to satisfy its burden of proof and did not offer an excusable reason for not producing evidence, the circuit court granted the motion to suppress based on the State’s failure to meet its evidentiary burden. The COA concluded the court’s decision was based on law – “the State’s failure to show good cause for not presenting any evidence and its resulting failure to meet its evidentiary burden on the suppression issue.” (¶ 21). The COA disagreed with the State’s argument that “actually litigated” requires a court to address the merits of the underlying issue after hearing all possible evidence. Rather, “an issue may also be actually litigated when the party with the burden of proof has the opportunity to present evidence, fails to do so, and the circuit court grants the motion based on the party’s failure to meet its evidentiary burden,” which is a determination based on an issue of law that the party failed to meet its burden of proof. (¶ 22).
Regarding fundamental fairness, the COA considered the circuit court’s concern justifiable that if issue preclusion did not apply, the State could relitigate the issue any time it was unable to present some or all of its intended evidence before a judge who was more amenable. (¶ 37). The State argued there was a strong public policy to prosecute drug offenders. However, the COA considered that the circuit court recognized this concern, but remarked that alleged drug offenders enjoy a presumption of innocence and it is the State’s obligation to bring forward evidence and make their case so that drug offenders are held responsible, which the COA determined was a proper exercise of discretion. (¶ 39). Finally, the COA accounted for the circuit court’s frustration with how the State handled the case, which was supported by the record: “Ultimately, the court found that the State must be held accountable for its repeated lack of preparation and that it would not be unfair to the State to apply issue preclusion for this reason. This determination is squarely within the confines of the fairness analysis.” (¶ 42).