No.

_________

In the Supreme Court of the United States

PEOPLE OF THE STATE OF MICHIGAN, PETITIONER

v.

FLOYD RUSSELL GALLOWAY, JR.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE MICHIGAN SUPREME COURT

PETITION FOR A WRIT OF CERTIORARI

Dana Nessel
Michigan Attorney General

Ann M. Sherman
Solicitor General
Counsel of Record
P.O. Box 30212
Lansing, Michigan 48909
ShermanA@michigan.gov
(517) 335-7628

John Pallas
Division Chief
Scott Shimkus
Assistant Attorney General
Criminal Appellate and
Parole Appeals Division

Attorneys for Petitioner

 i

QUESTIONS PRESENTED
The exclusionary rule, which bars the admission
of ill-gotten gains, exists for the sole purpose of deter-
ring intentional, egregious police misconduct in the
collection of evidence. Davis v. United States, 564 U.S.
229, 231–32, 246 (2011). But in applying the exclu-
sionary rule, courts must weigh the deterrence benefit
against the steep societal costs of excluding reliable,
probative evidence of guilt and the defendant’s poten-
tial evasion of prosecution. United States v. Leon, 468
U.S. 897, 907 (1984). The rule is not effective when
deterrence is only marginal, especially when the offic-
ers acted in good faith. Id. at 918–19. And the justifi-
cation for exclusion is attenuated when it results from
the actions of someone outside the prosecution team.
Indeed, federal courts consistently hold that the pros-
ecution is not held responsible for an outside officer’s
possession of exculpatory information. See, e.g.,
United States v. Hunter, 32 F.4th 22, 35 (2d Cir. 2022)
(citing Kyles v. Whitley, 514 U.S. 419, 437 (1995)). The
questions presented are:

1. Is exclusion of reliable, probative evidence of

guilt warranted to deter an outside officer’s miscon-
duct where there are other deterrents that do not de-
prive the jury of critical evidence, and where the in-
vestigative team operated in good faith?

2. Does a rule holding the State responsible for an

outside officer’s conveyance of an inculpatory tip,
where the officer failed to disclose that the tip came
from a privileged source, conflict with the rule that the
prosecution is not liable for an outside officer’s posses-
sion of exculpatory information?
 ii

PARTIES TO THE PROCEEDING

Petitioner is the People of the State of Michigan,
who, through the Michigan Attorney General, have
charged Floyd Galloway, Jr., with first-degree mur-
der.

RELATED CASES
• Oakland Circuit Court, People v. Floyd Russell
Galloway, Jr., No. 2019-272265-FC, Opinion is-
sued November 16, 2022 (suppressing evidence).

• Michigan Court of Appeals, People v. Floyd Russell

Galloway, Jr., No. 364083, Order issued February
9, 2023 (granting application for leave to appeal).

• Michigan Court of Appeals, People v. Floyd Russell

Galloway, Jr., No. 364083, Opinion issued Septem-
ber 21, 2023 (affirming suppression order).

• Michigan Supreme Court, People v. Floyd Russell

Galloway, Jr., No. 166366, Order issued June 14,
2024 (denying leave to appeal; two justices dissent-
ing).
 iii

TABLE OF CONTENTS

Questions Presented .................................................... i

Parties to the Proceeding ........................................... ii
Related Cases .............................................................. ii
Table of Authorities ................................................... vi
Opinions Below ........................................................... 1
Jurisdiction ................................................................. 1
Constitutional Provisions Involved ............................ 1
Introduction ................................................................ 2
Statement of the Case ................................................ 4
Reasons for Granting the Petition ........................... 18
I. The exclusion of evidence is a windfall
remedy designed solely to deter police
misconduct, not the unwitting, good-faith
efforts of an investigative team that was
pursuing an anonymous tip and was misled
by a single officer who was not part of the
team. ................................................................... 18
A. The exclusionary rule is to be employed
as a last resort, not a first impulse. ............ 18
B. Exclusion sweeps too broadly when used
to deter a single, outside officer’s
misconduct, where the unwitting
investigative team acted in good faith. ....... 22
C. The societal costs paid by exclusion are
too great to bear where the jury’s
evidentiary picture will be significantly
skewed and a murderer may go free. .......... 28
 iv

II. By holding the State responsible for

inculpatory information withheld by an
officer outside the prosecution team, this case
conflicts with Brady v. Maryland and its
progeny, which absolve the prosecution of
responsibility for even exculpatory
information held by an outside officer. .............. 30
A. Liability for undisclosed exculpatory
evidence is limited to the prosecution
“team.” .......................................................... 31
B. This “team” principle must apply equally
to an outside officer’s withholding of
inculpatory, yet privileged, information. .... 33
C. The State was held to a different
standard than the well-established
“team” principle, conferring liability for
an outside officer’s withheld knowledge of
a breached privilege. .................................... 34
Conclusion ................................................................. 36

PETITION APPENDIX TABLE OF CONTENTS

Michigan Supreme Court

Order denying application for leave to appeal
Docket No. 166366
Issued June 14, 2024 .......................................... 1a–6a

Michigan Court of Appeals

Opinion
Docket No. 364083
Issued September 21, 2023 ............................... 7a–24a
 v

Michigan Court of Appeals

Order
Docket No. 364083
Issued February 9, 2023 ......................................... 25a

Oakland Circuit Court

Opinion and Order on Suppression
Docket No. 2019-272265-FC
Issued November 16, 2022............................ 26a–113a
 vi

TABLE OF AUTHORITIES

Cases
Arizona v. Evans,
514 U.S. 1 (1995) .......................................... 19, 27
Brady v. Maryland,
373 U.S. 83 (1963) .......................................... 3, 31
Collins v. Virginia,
584 U.S. 586 (2018) ............................................ 23
Davis v. United States,
564 U.S. 229 (2011) ........... i, 18, 19, 20, 21, 25, 27
Elkins v. United States,
364 U.S. 206 (1960) ............................................ 20
Franks v. Delaware,
438 U.S. 154 (1978) ............................................ 14
Hall v. Mays,
7 F.4th 433 (6th Cir. 2021) ................................. 32
Hall v. State,
283 S.W.3d 137 (Tex. App.—Austin 2009) ........ 32
Herring v. United States,
555 U.S. 135 (2009) .................... 19, 20, 21, 24, 27
Hudson v. Michigan,
547 U.S. 586 (2006) .................... 19, 21, 23, 24, 30
Illinois v. Gates,
462 U.S. 213 (1983) .......................... 21, 23, 25, 26
Illinois v. Krull,
480 U.S. 340 (1987) ............................................ 27
Kyles v. Whitley,
514 U.S. 419 (1995) ................................... i, 31, 35
 vii

Lange v. California,
594 U.S. 295 (2021) ............................................ 19
Michigan v. Tucker,
417 U.S. 433 (1974) .......................... 19, 25, 26, 27
Montejo v. Louisiana,
556 U.S. 778 (2009) ...................................... 29, 30
Nix v. Williams,
467 U.S. 431 (1984) ...................................... 20, 21
Pahls v. Thomas,
718 F.3d 1210 (10th Cir. 2013) ............................ 9
Pennsylvania Bd. of Probation and Parole v.
Scott,
524 U.S. 357 (1998) ...................................... 20, 21
People v. Joly,
970 N.W.2d 429 (Mich. Ct. App. 2021) .............. 13
Schlup v. Delo,
513 U.S. 298 (1995) ...................................... 31, 35
Stone v. Powell,
428 U.S. 465 (1976) ............................................ 19
Sutton v. Carpenter,
617 F. App’x 434 (6th Cir. 2015) ........................ 32
United States v. Agurs,
427 U.S. 97 (1976) .............................................. 31
United States v. Avellino,
136 F.3d 249 (2d Cir. 1998) ................................ 32
United States v. Bagley,
473 U.S. 667 (1985) ............................................ 31
United States v. Hunter,
32 F.4th 22 (2d Cir. 2022) ............................... i, 31
 viii

United States v. Leon,

468 U.S. 897 (1984) ................. i, 19, 20, 21, 25, 27
United States v. Mitrovich,
95 F.4th 1064 (7th Cir. 2024) ............................. 32
United States v. Morris,
80 F.3d 1151 (7th Cir. 1996) .............................. 32
United States v. Voigt,
89 F.3d 1050 (3d Cir. 1996) ................................ 13

Statutes
28 U.S.C. § 1257(a) ..................................................... 1
42 U.S.C. § 1983 ........................................................ 17
Mich. Comp. Laws § 338.1728(3) ....................... 17, 24
Mich. Comp. Laws § 338.1729 .................................. 17
Mich. Comp. Laws § 338.1729(1) ............................. 24

Rules
Fed. R. Evid. 201(b)(2) ................................................ 9

Constitutional Provisions
U.S. Const. amend. V.................................................. 1
U.S. Const. amend. XIV .............................................. 1
 1

OPINIONS BELOW
The Michigan Supreme Court’s order denying the
State’s application for leave to appeal, App. 1a, is re-
ported in a table at 7 N.W.3d 532. The Michigan Court
of Appeals’ opinion, App. 7a, is not reported but is
available at 2023 WL 6173388. The Michigan Court of
Appeals’ order granting the State’s application for
leave to appeal, App. 25a, is not reported. The trial
court’s opinion and order, App. 26a, is not reported.

JURISDICTION
The Michigan Supreme Court entered its order on
June 14, 2024. The State invokes this Court’s jurisdic-
tion under 28 U.S.C. § 1257(a).

CONSTITUTIONAL PROVISIONS INVOLVED

The Fifth Amendment to the United States Con-
stitution provides, in pertinent part, “No person shall
be . . . deprived of life, liberty, or property, without due
process of law . . . .”

The Fourteenth Amendment to the United States

Constitution provides identical prohibitions for the
States.
 2

INTRODUCTION
The exclusionary rule is a prophylactic deterrent
for bad police officers. But what if an investigative
team, acting in good faith, is misled by the misconduct
of an officer outside of the team? In that case, should
the team lose all its virtuously collected evidence?

Charles Nebus, chief of the Farmington Hills Po-

lice Department (FHPD), was misled in that manner.
In December 2016, his team investigated the disap-
pearance of 28-year-old Danielle Stislicki. Danielle
was last seen leaving her office with defendant Floyd
Galloway, Jr. Since then, no one—not her family,
friends, coworkers, or the police officers diligently in-
vestigating her disappearance—has heard from or
found her. She has now been declared deceased.

One week after Danielle vanished, Gary Mayer,

chief of a different police department, called Nebus
with a tip about this case from a source who wished to
remain anonymous. Nebus, believing the tip was le-
gitimate, sent his officers to investigate. They verified
nearly every facet of it. Danielle’s Fitbit and keys were
found discarded by a road. Security footage showed
Galloway walking past a gas station and into a Tim
Hortons restaurant near Danielle’s apartment. And
Galloway had taken a cab back to Danielle’s office.

As it turns out, Nebus was duped by Mayer. Long

after the tip evidence was recovered, Nebus and his
team learned that Mayer’s source was James Hoppe,
a retired FBI agent turned polygrapher for defense at-
torneys. Mayer figured Hoppe got his information
from a polygraph and yet still passed the tip to Nebus
without flagging that the tip was likely privileged.
 3

The trial court has excluded the tip evidence, find-

ing that Mayer and the FHPD violated due process by
breaching Galloway’s attorney-client privilege. The
Michigan Court of Appeals affirmed based on Mayer’s
actions. The Michigan Supreme Court denied leave to
appeal, but two justices dissented.

Consistent with the dissent’s reasoning, the State

seeks certiorari from this Court on two grounds. First,
the exclusionary rule should not apply where the in-
vestigative team acted in good faith and was deceived
by an outside officer. Here, Nebus did nothing wrong
in need of deterrence. The only officer to act wrongly
was Mayer, who was not part of the team. And the
needed deterrence can be accomplished without sacri-
ficing the evidence collected by the unwitting FHPD
officers acting in good faith. An officer such as Mayer
could be disciplined, prosecuted, or sued for his ac-
tions. But all-out exclusion does more harm than good.

Second, punishing the investigative team for an

outside officer’s disclosure of inculpatory information,
with the fact of privilege withheld, conflicts with
Brady v. Maryland, 373 U.S. 83 (1963), and its prog-
eny, which holds that the prosecution team is not lia-
ble for undiscovered exculpatory information from an
outside officer. These principles sprint in opposite di-
rections. If the Constitution is not offended when an
outside officer has even exculpatory information—
that which is most coveted by the criminal justice sys-
tem—it cannot be offended when that same officer has
inculpatory information and withholds its privileged
nature.

The Court should thus grant this petition or, al-

ternatively, peremptorily reverse.
 4

STATEMENT OF THE CASE

The evidence before the tip

Galloway knew Danielle. She worked at MetLife

in Southfield, where Galloway had been a security
guard until October 2016. (9/9/19 Prelim. Exam. Tr. at
74–75.) He flirted with her and had even sent her
flowers as a secret admirer. (Id. at 44, 46, 56, 225–27.)

Danielle disappeared on December 2, 2016. She

had dinner plans with her best friend that night, but
Danielle never made it, and she uncharacteristically
failed to answer her phone. (Id. at 13–14, 16, 22–24.)
By the next morning, Danielle’s parents reported her
missing to the FHPD. (Id. at 17, 40.) Despite years of
personal and professional search efforts, Danielle has
never been found. (Id. at 49, 233–38.)

Before looking at Danielle’s movements the day

she disappeared, it is important to first examine Gal-
loway’s. By that day, Galloway had long since been as-
signed to a different work location. (Id. at 83.) Yet, at
11:14 a.m., his cellphone pinged the tower near Met-
Life and Grodan Drive. (9/10/19 Prelim. Exam. Tr. at
72–73.) Twelve minutes later, Galloway’s phone
pinged near his home in Berkley, where he lived with
his wife. (Id.) His phone tracked back towards MetLife
at 3:48 p.m. and stopped registering on the network
eight minutes later. (Id. at 75.)

Danielle’s coworkers were the last people to see

her alive as she left work around 5:00 p.m. (9/9/19 Pre-
lim. Exam. Tr. at 58, 67.) One person saw her run into
Galloway in the MetLife parking lot with the hood of
his dark-colored Buick Regal propped up, indicating
 5

car trouble. (Id. at 60.) Another person next saw Gal-

loway in the passenger seat of Danielle’s car as Dan-
ielle drove them out of the parking lot. (Id. at 69.)

Cellphone record data showed Danielle’s phone

travel east from MetLife to Galloway’s home from
4:47 p.m. to 5:07 p.m. (9/10/19 Prelim. Exam. Tr. at
76–79.) A business security camera captured Dan-
ielle’s vehicle driving east at 5:03 p.m. (9/9/19 Prelim.
Exam. Tr. at 157–58.) From 6:20 p.m. to 7:38 p.m.,
Galloway’s and Danielle’s phones pinged the same
tower near Galloway’s home. (9/10/19 Prelim. Exam.
Tr. at 78–79.) Galloway’s phone again stopped regis-
tering with his network at 7:38 p.m., but Danielle’s
phone remained connected. (Id. at 79.)

At 7:53 p.m., Danielle’s phone began traveling

west from Galloway’s home, as captured on the previ-
ous business security camera. (9/9/19 Prelim. Exam.
Tr. at 160; 9/10/19 Prelim. Exam. Tr. at 79.) Her phone
tracked to her apartment at 8:16 p.m. and then con-
tinued just further west, when her phone ceased com-
municating with her network. (9/9/19 Prelim. Exam.
Tr. at 95; 9/10/19 Prelim. Exam. Tr. at 79–81.)

After she was reported missing, and having

learned of her recent interaction with Galloway,
FHPD officers interviewed Galloway at his new work
location on December 6. (9/9/19 Prelim. Exam. Tr. at
97–100.) The officers noticed Galloway’s Buick in the
parking lot. (Id. at 98–99.) When the officers asked
Galloway if he knew Danielle, he responded, “Yeah, I
did,” and said he last saw Danielle “several months
ago.” (Id. at 101.)
 6

The following day, December 7, the FHPD exe-

cuted a search warrant at Galloway’s home. (Id. at
103.) They found a patch of recently replaced carpet
in the master bedroom. (Id. at 108–09.) The officers
cut the carpet a little wider than the patch itself and
took it into evidence. (Id. at 110–11.) They also found
carpet scraps in the kitchen garbage. (Id. at 108.) A
forensic analysis found touch DNA from Danielle on
the fringes of the bedroom patch; the odds that the
DNA belonged to anyone else were 32 septillion to 1.
(9/10/19 Prelim. Exam. Tr. at 17–18.)

Then the tip came in.

The tip

Gary Mayer, then-chief of the Troy Police Depart-

ment, received a call from his friend, James Hoppe, on
Friday, December 9, 2016, one week after Danielle
disappeared. (5/3/22 Evid. Hr’g Tr. at 9–10.) Mayer
knew Hoppe personally, meeting when their children
played soccer, and professionally, as Hoppe was a re-
tired FBI agent turned private-practice polygrapher,
including for defense attorneys. (Id. at 10–11, 45.)
Hoppe told Mayer “he had information on the security
guard and the homicide, and he said that he wanted
to relay it, it was very important, but he couldn’t relay
it unless [Mayer] could keep his identity confidential.”
(Id. at 11–12.) Hoppe mentioned an impending snow-
storm and concern that evidence could be lost or de-
stroyed. (Id. at 12.) As Hoppe spoke, Mayer took notes
that he kept in an “assist other departments staff in-
spection” file. (Id. at 13, 38.)

Mayer first tried to relay the tip up the command

chain at the FHPD, to no avail, so Mayer finally called
 7

Charles Nebus, then-chief of the FHPD. (Id. at 20–21.)

Mayer read his notes to Nebus. (Id. at 22.) He did not
identify the source because “the source wanted to re-
main confidential.” (Id. at 23.) Mayer did not recall
Nebus asking about the source. (Id. at 22–23.)

Nebus confirmed Mayer’s account. (Id. at 80–81.)

Galloway had already been a suspect in Danielle’s dis-
appearance, so Nebus knew this was the case to which
the tip referred. (Id. at 80–81, 254–55.) To document
the tip, Nebus wrote notes and transferred them to a
FHPD tip sheet, stating:

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 Hor-
ton’s at 10 and Halsted where he called Sham-
rock cab or something that sounds like Sham-
rock 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 vic-
tims [sic] keys in a grassy area by the freeway
while walking to Tim Horton’s [sic]. The fitbit
should be near the keys. The victims [sic] cell
phone was placed in the trash inside Tim Hor-
ton’s [sic]. The victims [sic] body should be in-
side a beige and brown comforter. Upon fur-
ther questioning, the caller had no further in-
formation and wished to remain anonymous.

App. 9a. The tip sheet did not mention Mayer. (5/3/22
Evid. Hr’g Tr. at 84–87.) But Nebus identified Mayer
as the caller to two or three people in his office that
night. (Id. at 90–91.)
 8

Mayer spoke with Nebus again the following Mon-

day, asking if the source had other information. (Id. at
24, 27.) Mayer called Hoppe, who repeated the same
information. (Id. at 29–30.) Mayer called Nebus back
and reiterated the information. (Id. at 30–31.) Nebus
did not recall anything more. (Id. at 164.)

The evidence after the tip

FHPD officers immediately investigated the tip.

Within one mile west of Danielle’s apartment, there is
a gas station, the M-5 freeway entrance ramp, and a
Tim Hortons restaurant. (6/13/22 Evid. Hr’g Tr. at
146; 9/9/19 Prelim. Exam. Tr. at 113.) Security video
at the gas station depicted a person appearing to be
Galloway the night Danielle disappeared. (6/13/22
Evid. Hr’g Tr. at 146.)

Walking westward from the gas station to the Tim

Hortons, the officers located Danielle’s Fitbit and keys
in a fielded area. (Id.) The keys were recovered closest
to the gas station, on the east side of the M-5 entrance
ramp, while the Fitbit was found on the west side of
the ramp. (9/9/19 Prelim. Exam. Tr. at 139–41.)

At the Tim Hortons, security video from Decem-

ber 2 showed Galloway entering at 8:38 p.m., placing
an order, paying with cash, and asking to use the busi-
ness phone. (6/13/22 Evid. Hr’g Tr. at 145; 9/9/19 Pre-
lim. Exam. Tr. at 117, 119.) This was twenty-two
minutes after Danielle’s phone stopped registering on
her network just west of her apartment after return-
ing from Galloway’s home. (9/10/19 Prelim. Exam. Tr.
at 79–81.)
 9

This map shows the full evidentiary picture 1:

The Tim Hortons phone records showed that a call

had been placed to the Michigan Green Cab Company.
(6/13/22 Evid. Hr’g Tr. at 35.) This was consistent with
the Tim Hortons video, which showed that Galloway
retrieved a yellow piece of paper from his pocket and
then dialed a number on the business phone. (9/9/19
Prelim. Exam. Tr. at 119.) The video showed the cab
pulling up at 9:05 p.m. and Galloway exiting the res-
taurant at 9:09 p.m. (6/13/22 Evid. Hr’g Tr. at 35;
9/9/19 Prelim. Exam. Tr. at 123.)

The cab driver and company records indicated

that Galloway was dropped off at 9:20 p.m. at an
apartment building on Grodan Street in Southfield—
the same street where his phone had pinged at
11:14 a.m. that morning. (9/9/19 Prelim. Exam. Tr. at
87–89, 161.) This was only about 1,000 feet from

1 This map was generated using Google Maps and a police sketch.
The sketch was admitted as an exhibit at the preliminary exam-
ination, but the map was not. (9/9/19 Prelim. Exam. Tr. at 139.)
This Court may take judicial notice of satellite images from
Google Maps. See, e.g., Pahls v. Thomas, 718 F.3d 1210, 1216 n.1
(10th Cir. 2013); Fed. R. Evid. 201(b)(2).
 10

MetLife, where Galloway had left his vehicle before

leaving with Danielle that day. (Id. at 150.) Security
footage from the apartment building showed Gallo-
way begin to walk toward the entrance but then turn-
ing around and heading toward MetLife. (Id. at 144–
45, 147.).

At 9:37 p.m., the same business security camera

that showed Danielle’s vehicle driving to and from
Galloway’s home earlier that evening also caught a
dark-colored Buick Regal with a temporary plate—
identical to Galloway’s vehicle—traveling east to-
wards Galloway’s home. (Id. at 161.) Galloway’s phone
resumed network communication at his home at
9:39 p.m. and continued until 3:58 a.m. (9/10/19 Pre-
lim. Exam. Tr. at 82.)

Also consistent with the tip’s reference to the body

wrapped in a comforter, records showed that Gallo-
way purchased a new comforter at Bed, Bath, and Be-
yond on December 4, two days after Danielle’s disap-
pearance. (9/9/19 Prelim. Exam. Tr. at 165.)

Privilege discovered and disclosed

Even well after the FHPD had investigated the

tip, Hoppe’s identity as the tipster and his privileged
status were known only to Mayer. Mayer knew that
Hoppe conducted polygraphs for defense attorneys,
and while Hoppe never told Mayer that his Decem-
ber 9 information came from a polygraph, Mayer “fig-
ured it.” (5/3/22 Evid. Hr’g Tr. at 40.) But Mayer did
not convey this to Nebus. (Id. at 83, 92.) At the time,
Nebus thought the tipster was someone close to Gal-
loway such that the tipster might be in danger of re-
prisal if the tipster’s identity was revealed. (Id. at
 11

109–10.) Until the media reports on this topic in 2022,

Nebus did not know the original source was the pol-
ygrapher. (Id. at 88, 103, 108–09, 196.) No one else at
the FHPD knew, either. (Id. at 209–10, 217, 238–39,
258–59; 6/13/22 Evid. Hr’g Tr. at 99–100, 147–48.)

The notion of a privileged source was not even con-

templated until early 2017, after Nebus met with the
Oakland County Prosecutor. (5/3/22 Evid. Hr’g Tr. at
94.) Nebus told the prosecutor and her chief deputy
that he received the tip from Mayer. (Id.) Initially, the
prosecutors took no action, but when Nebus contacted
them a week or two later (after he consulted with an
attorney because he was concerned about finding the
source), the prosecutors asked Nebus to have Mayer
contact them. (Id. at 95–100.) Nebus passed the mes-
sage along when he and Mayer were at a police chiefs’
conference on February 8, 2017. (Id. at 34, 100–02.)

When Mayer called the prosecutors, without

Nebus on the call, the prosecutors asked Mayer to
identify his source. (Id. at 33–35, 40.) Mayer declined,
saying that the “source wanted to remain confiden-
tial.” (Id.) The prosecutors discussed whether Mayer
“could be compelled to give them the information.”
(Id.) Mayer presented a hypothetical, querying,
“[W]hat if this person worked for the defense attor-
ney.” (Id. at 35, 42.) The chief deputy then speculated
“you got the polygrapher or private investigator.” (Id.
at 42.) Mayer did not respond. (Id.) The chief deputy
“deduced” that the tip came from attorney-client priv-
ilege, but Mayer did not tell him this. 2 (6/24/22 Evid.

2 The chief deputy testified that Nebus identified the tipster as a

“polygraphist,” (6/24/22 Evid. Hr’g Tr. at 9), but Nebus said that
was not possible because he did not know. (5/3/22 Evid. Hr’g Tr.
 12

Hr’g Tr. at 11.) On February 14, 2017, after the pros-

ecutors had spoken with Mayer, the chief deputy told
Nebus the tip “likely” came from a privileged source.
(5/3/22 Evid. Hr’g Tr. at 175–76.)

But identification of Hoppe did not come until

2019, when the Michigan Attorney General initiated
an investigative subpoena to force Mayer’s hand. The
Attorney General needed to confirm that the source
was not an accomplice. (8/5/22 Evid. Hr’g Tr. at 11.)
Neither Nebus nor his officers knew the source’s iden-
tity. (Id. at 9–11, 80–81.) Mayer refused to identify the
source until a court ordered him to do so. (Id. at 10–
11, 14.) The investigative-subpoena proceedings were
promptly disclosed to every one of Galloway’s defense
attorneys. (8/5/22 Evid. Hr’g Tr. at 25–26, 28, 34.)

In March 2019, the Attorney General charged

Galloway with first-degree murder. At the prelimi-
nary examination (Michigan’s probable-cause hear-
ing), neither party discussed the tip; Galloway did not
challenge it and the State did not offer it as evidence.
(Id. at 27–28.) The State did, however, admit all rele-
vant evidence, including the evidence recovered from
the tip. (See, e.g., 9/9/19 Prelim. Exam. Tr. at 114–23.)
At the end of the exam, the district court concluded
that there was “overwhelming evidence” to send the
case to trial. (9/10/19 Prelim. Exam. Tr. at 94.)

Tip evidence suppressed

Despite full disclosure of the tip, Galloway did not

challenge it until October 2021, more than two years

at 102–03.) The Michigan Court of Appeals found the trial court’s

conclusion that Nebus knew to be “tenuous.” App. 15a.
 13

after the Attorney General made Galloway’s defense

team aware of it. At that time, he filed a consolidated
motion to suppress evidence, quash the information,
and dismiss the case. Following multiple evidentiary
hearings, briefing, and oral argument, the trial court
issued a 64-page opinion and order suppressing the
tip evidence. App. 26a–113a.

The court found that the government knowingly

intruded into Galloway’s attorney-client privilege and
thus violated due process. App. 81a. The court applied
the test from People v. Joly, 970 N.W.2d 429 (Mich.
Ct. App. 2021), which largely rested on United States
v. Voigt, 89 F.3d 1050 (3d Cir. 1996). App. 64a. The
test is three-fold: (1) the police were objectively aware
of an ongoing privileged relationship between the de-
fendant and a confidant, (2) the police deliberately in-
truded into that privileged relationship, and (3) actual
prejudice resulted from the intrusion. App. 68a.

For the first and second prongs, the trial court

grouped Mayer and the FHPD together. App. 81a,
88a–89a. The trial court found that Mayer and the
FHPD (Nebus) knew or should have known that the
tip came from a privileged source. Mayer had “fig-
ured” the information was privileged based on his fa-
miliarity with Hoppe, and Nebus’s actions in essence
indicated a guilty conscience, such as omitting
Mayer’s name from the tip sheet and consulting with
counsel. App. 75a–81a. The trial court further found
that the FHPD (again, Nebus) knowingly intruded
into Galloway’s attorney-client privilege by seeking
out and recovering evidence from the tip. App. 81a–
89a. Finally, for the third prong, the court found
 14

prejudice because the State used the evidence at the

exam and intended to use it at trial. App. 89a–94a.

As a result, the trial court suppressed:

Danielle Stislicki’s Fitbit, keys, and telephone

and forensic data retrieved therefrom; the tes-
timony of persons working at Tim Horton’s
[sic] who observed the Defendant; surveil-
lance footage and phone records from Tim
Horton’s; surveillance footage from the gas
station near Tim Horton’s [sic]; and infor-
mation obtained from the Green Cab com-
pany.

App. 112a. The court further stated that it “will con-

sider additional evidence that falls in this category.”
App. 112a.

The court denied the motions to quash and to dis-

miss without prejudice and called for further briefing.
App. 112a–113a. This included Galloway’s motion un-
der Franks v. Delaware, 438 U.S. 154 (1978), which
argued for further suppression because the evidence
recovered from the tip was cited in subsequent search
warrants. App. 94a–98a. The additional briefing will
further concern Galloway’s claim that the case should
be dismissed due to the Attorney General’s handling
of the privileged information. 3 App. 112a–113a.

3 Out of an abundance of caution, the Attorney General estab-

lished an internal isolation wall on November 29, 2022.
 15

Michigan Court of Appeals

In an unpublished opinion, a panel of the Michi-

gan Court of Appeals affirmed the trial court’s deci-
sion. App. 8a. The Court of Appeals declared Mayer a
government actor with objective knowledge that the
tip was privileged. App. 14a–15a.

The State had argued that Mayer’s knowledge and

actions should not be attributed to the prosecution be-
cause he was an outside actor, consistent with the
Brady “team” principle wherein the prosecution is not
liable for undiscovered exculpatory information pos-
sessed by someone outside the investigative team.
App. 13a–14a. The Court of Appeals recognized that
Mayer “had no formal affiliation with the investiga-
tion” and that “Mayer’s own police department was
otherwise uninvolved,” but rejected the Brady frame-
work and imputed Mayer’s misconduct to the prosecu-
tion because Mayer “intentionally interjected himself
into the matter when he conveyed Hoppe’s tip to the
FHPD.” App. 13a–14a, 19a. The Court of Appeals held
that because Mayer was a “high-ranking law-enforce-
ment officer with many decades of experience and at
least some knowledge of attorney-client privilege,” he
should have “simply held his silence” and not relayed
the tip to the FHPD. App. 12a, 18a. But he did, so the
court ruled that Mayer deliberately intruded into Gal-
loway’s attorney-client privilege. App. 18a.

On the other hand, the court largely absolved the

FHPD. The court characterized the trial court’s con-
clusion that Nebus knew or should have known the tip
was privileged as “tenuous,” because a tipster wishing
to remain anonymous or confidential is not at all un-
usual in law enforcement. App. 15a–16a. The reasons
 16

for anonymity abound, the court explained, including

that “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 be-
ing labeled a ‘snitch.’ ” App. 16a. So, “the request for
anonymity was not inherently suggestive of an ongo-
ing attorney-client relationship or other form of privi-
lege.” App. 16a. Rather, the record “impl[ied] only that
Nebus suspected the tip was privileged,” which was
not enough to impute knowledge, i.e., “there is a sig-
nificant distance between mere suspicion that there
was something suspicious about the tip and objective
awareness that the tipster was an agent of defense
counsel.” App. 16a (emphasis added). But because
Mayer knew (or effectively knew), that was enough ac-
cording to the Court of Appeals. App. 16a.

The Court of Appeals also rejected the State’s ar-

gument that the FHPD acted in good faith and that
suppression of the evidence would therefore not have
any deterrent effect on law enforcement. App. 20a.
The court again focused on Mayer. App. 22a. The court
said that failing to apply the exclusionary rule in this
case “could actually encourage misconduct” by pro-
moting ignorance. App. 23a.

Finally, the Court of Appeals “agree[d] with the

prosecution that the trial court’s ruling regarding the
extent of evidence to be excluded was over expansive”
by barring Danielle’s phone and “forensic data re-
trieved therefrom.” App. 23a. Danielle’s phone was
never recovered, and her phone data was obtained be-
fore the tip. App. 23a. Thus, the Court of Appeals re-
manded for amendment of the opinion and order to
that extent. App. 23a–24a.
 17

Michigan Supreme Court

The State sought review in the Michigan Supreme

Court, stressing that the FHPD’s good faith rendered
exclusion of the tip evidence imprudent and inhib-
itive. The State also reiterated that the Michigan
Court of Appeals’ decision conflicted with the Brady
“team” principle. The Court denied leave. App. 1a–2a.

Two justices dissented. App. 1a, 6a. They would

have granted leave on both “jurisprudentially signifi-
cant” issues. App. 2a. First, with respect to the exclu-
sionary rule, Justice Viviano identified alternative de-
terrents for Mayer. App. 3a–5a. For instance, state
law prohibits and even criminalizes disclosure of pol-
ygraph statements. 4 Mich. Comp. Laws
§§ 338.1728(3), 338.1729. App. 3a–4a. One could also
sue under 42 U.S.C. § 1983. App. 4a. Conversely, “sup-
pression carries substantial societal costs,” including
loss of “reliable and probative” evidence that “will cer-
tainly impair the jury’s truth-finding ability.” App. 5a.

Second, Justice Viviano thought it prudent for the

Court to consider potential conflict with Brady.
App. 5a. He contrasted Brady’s absolution of an out-
side officer in possession of exculpatory information
against Joly’s damning of the same outside officer in
possession of inculpatory information. App. 5a. He be-
lieved the Court should have harmonized the rules.
App. 5a.

The State asks this Court to take up that mantle.

4 Mayer has not been charged, and the six-year statute of limita-
tions has run. See Mich. Comp. Laws § 767.24(10).
 18

REASONS FOR GRANTING THE PETITION

I. The exclusion of evidence is a windfall

remedy designed solely to deter police
misconduct, not the unwitting, good-faith
efforts of an investigative team that was
pursuing an anonymous tip and was misled
by a single officer who was not part of the
team.
This case weighs the deterrence effect of the ex-
clusionary rule on two distinct players. The first is a
lone, outside officer guilty of misconduct (Mayer). The
second is the investigative team (the FHPD), which
received and in good faith investigated an anonymous
tip from the outside officer, who withheld the fact that
the tip came from a privileged source. The total exclu-
sion of evidence collected from the tip punishes the
latter for the sins of the former. That is not how the
exclusionary rule was intended to or should operate.

Rather, there are effective civil and criminal rem-

edies to deter the type of misconduct committed by
Mayer without inordinately punishing the FHPD, the
prosecution, and society by depriving the jury of reli-
able, probative evidence of guilt. This Court should
therefore grant certiorari and hold that exclusion is
not warranted under these circumstances. “[B]oth the
truth and the public safety” hang in the balance. Da-
vis, 564 U.S. at 231.

A. The exclusionary rule is to be employed

as a last resort, not a first impulse.
The exclusionary rule is a creature of the Fourth
Amendment’s prohibition against unreasonable
 19

searches and seizures. Davis, 564 U.S. at 231. Be-

cause the Constitution was “silent about how this
right is to be enforced,” this Court “supplement[ed]
the bare text” by creating the exclusionary rule. Id.
The rule “bars the prosecution from introducing evi-
dence obtained by way of a Fourth Amendment viola-
tion.” Id. at 231–32. The rule has also been applied in
the Fifth Amendment context. Michigan v. Tucker,
417 U.S. 433, 447 (1974).

The rule is not to be applied “reflexive[ly],” how-

ever. Arizona v. Evans, 514 U.S. 1, 13 (1995). It is “not
an automatic consequence” of a constitutional viola-
tion. Herring v. United States, 555 U.S. 135, 137
(2009). While the rule finds its roots in the Fourth
Amendment, it is “not a personal constitutional right”
or a “self-executing mandate.” Davis, 564 U.S. at 236–
37 (quoting Stone v. Powell, 428 U.S. 465, 486 (1976)).
See also Leon, 468 U.S. at 905–06 (exclusion is not a
“necessary corollary” to or “required” by the Constitu-
tion). Instead, the rule is “a prudential doctrine, cre-
ated by this Court to compel respect for the constitu-
tional guaranty.” Davis, 564 U.S. at 236 (cleaned up).
As such, application of this judicially created remedy
“has always been our last resort, not our first im-
pulse.” Hudson v. Michigan, 547 U.S. 586, 591 (2006)
(emphasis added).

The rule’s sole purpose is exceedingly narrow: de-

terrence of police misconduct. Davis, 564 U.S. at 246.
“And not just any misconduct,” but “ ‘intentional con-
duct that was patently unconstitutional.’ ” Lange v.
California, 594 U.S. 295, 317 (2021) (Thomas, J., con-
curring) (quoting Herring, 555 U.S. at 143) (emphasis
added in concurrence). The rule was not “designed to
 20

redress the injury occasioned by an unconstitutional

search.” Davis, 564 U.S. at 236 (cleaned up). It is “to
prevent, not to repair.” Elkins v. United States, 364
U.S. 206, 217 (1960).

Exclusion turns on weighing the benefits against

the costs. Leon, 468 U.S. at 907. The “benefits” side of
the scale asks whether exclusion will serve the singu-
lar purpose of deterring police misconduct. Davis, 564
U.S. at 237. This Court has therefore “limited the
rule’s operation to situations in which this purpose is
thought most efficaciously served.” Id. (cleaned up).
“The extent to which the exclusionary rule is justified
by these deterrence principles varies with the culpa-
bility of the law enforcement conduct,” requiring anal-
ysis of the “flagrancy” of the police misconduct. Her-
ring, 555 U.S. at 143. At a minimum, the police must
have known, or should have known, that their conduct
was unconstitutional. Id. From there, the exclusion-
ary rule “serves to deter deliberate, reckless, or
grossly negligent conduct, or in some circumstances
recurring or systemic negligence.” Id. at 144.

Conversely, the “costs” are those paid by “the ju-

dicial system and society at large.” Davis, 564 U.S. at
237. There are two. First, the rule “almost always re-
quires courts to ignore reliable, trustworthy evidence
bearing on guilt or innocence.” Id.; see also Nix v. Wil-
liams, 467 U.S. 431, 443 (1984) (recognizing “the pub-
lic interest in having juries receive all probative evi-
dence of a crime”). That is, it effectively bars the jury
“from considering all the evidence.” Herring, 555 U.S.
at 137. This “undeniably detracts from the truthfind-
ing process,” Pennsylvania Bd. of Probation and Pa-
role v. Scott, 524 U.S. 357, 364 (1998), with an
 21

“unbending” application “unacceptably” so, Leon, 468

U.S. at 907 (cleaned up). Second, if juries are deprived
of reliable, inculpatory evidence, the justice system
risks “setting the guilty free and the dangerous at
large.” Hudson, 547 U.S. at 591. This Court has been
clear that “the criminal should not go free because the
constable has blundered.” Herring, 555 U.S. at 148.

The rule’s “bottom-line effect, in many cases, is to

suppress the truth and set the criminal loose in the
community without punishment.” Davis, 564 U.S. at
237. These “substantial social costs . . . have long been
a source of concern.” Leon, 468 U.S. at 907. Though
these costs are “worth bearing in certain circum-
stances, . . . the rule’s costly toll upon truth-seeking
and law enforcement objectives presents a high obsta-
cle for those urging application of the rule.” Scott, 524
U.S. at 364–65. Indeed, “any rule of evidence that de-
nies the jury access to clearly probative and reliable
evidence must bear a heavy burden of justification
and must be carefully limited to the circumstances in
which it will pay its way by deterring official lawless-
ness.” Illinois v. Gates, 462 U.S. 213, 257–58 (1983)
(White, J., concurring). “[T]he prosecution is not [to
be] put in a worse position simply because of some ear-
lier police error or misconduct.” Nix, 467 U.S. at 443.

To put it bluntly, “society must swallow this bitter

pill when necessary, but only as a ‘last resort.’ ” Davis,
564 U.S. at 237 (quoting Hudson, 547 U.S. at 591).
 22

B. Exclusion sweeps too broadly when used

to deter a single, outside officer’s
misconduct, where the unwitting
investigative team acted in good faith.
The consequences of applying the exclusionary
rule here will reverberate across all law enforcement.
It implicates the way officers must investigate anony-
mous tips by scrupulously ensuring they did not come
from a privileged source, even if there is no objective
indication to the investigative team that they did.
There is no deterrent effect to be had on law enforce-
ment for good-faith conduct such as the FHPD exhib-
ited here. And there are much narrower state and fed-
eral mechanisms to deter the one, outside officer actu-
ally in need of deterrence—Mayer.

Exclusion under these circumstances may require

every law enforcement agency to vet every purported
anonymous tip for potential privilege, with devastat-
ing effect. Entities such as Crime Stoppers—created
to encourage witnesses to report crimes without fear
of recognition or retribution—would be a thing of the
past. Crime Stoppers explicitly tells citizen tipsters,
“You do not have to give your name and Crime Stop-
pers does not utilize caller ID,” and that “Citizens Wit-
nesses are identified by Tip Numbers, not names.”
Crime Stoppers – About, How it Works. 5 Such a vet-
ting requirement could affect the whole investigation.
In a case as expansive as this with hundreds of tips, it
could bring the investigation to a screeching halt. (See
5/3/22 Evid. Hr’g Tr. at 91 (“[W]e had tips pouring in
all over the place.”); 6/13/22 Evid. Hr’g Tr. at 49

5 https://www.crimestoppersofmidmichigan.com/index.php/how-
it-works (last accessed on Aug. 15, 2024.)
 23

(positing that there were approximately 500 tips in

this case).) Delay could be fatal where, as here, the
victim was originally reported missing.

Anonymous tips are commonplace and crucial for

law enforcement. While they must be reliable, “such
tips, particularly when supplemented by independent
police investigation, frequently contribute to the solu-
tion of otherwise ‘perfect crimes.’ ” Gates, 462 U.S. at
237–38. This Court has expressly rejected any “stand-
ard that leaves virtually no place for anonymous citi-
zen informants” due to their centrality in public
safety. Id. at 238. And a desire for anonymity is not an
automatic red flag for privilege. “There are any num-
ber of reasons a tipster might wish to remain un-
known,” including that “the tipster might fear retri-
bution, feel a degree of guilty about implicating a
loved one, believe he or she might be implicated in the
crime, or wish to avoid being labeled a ‘snitch.’ ” App.
16a. Nebus had those very concerns. (5/3/22 Evid. Hr’g
Tr. at 109–10; 8/5/22 Evid. Hr’g Tr. at 11.)

To be sure, the State does not condone Mayer’s

cognizant breach of Galloway’s polygrapher- and at-
torney-client privileges. But to use the exclusionary
rule to deter his personal misdeeds would dispropor-
tionately punish the innocent actions of the FHPD. In-
stead, there are more focused alternative deterrents
available. “[T]his Court has recognized the effective-
ness of alternative deterrents such as state tort law,
state criminal law, internal police discipline, and suits
under 42 U.S.C. § 1983.” Collins v. Virginia, 584 U.S.
586, 609 n.6 (2018) (Thomas, J., concurring). Suppres-
sion is not the only available deterrent for police mis-
conduct. See Hudson, 547 U.S. at 596.
 24

Michigan Justice Viviano made that same obser-

vation in this case. He identified other deterrents
short of all-out exclusion of evidence. Michigan law
not only bars the disclosure of polygraph results under
§ 338.1728(3), but it even criminalizes such disclosure
as a misdemeanor, § 338.1729(1). App. 3a–4a. “Those
statutory provisions expose an officer who conveys
confidential information gained from a polygrapher to
criminal liability, which is certainly a strong deter-
rent and reduces the incremental deterrence that the
exclusionary rule would provide.” App. 4a.

Federal law provides a deterrent as well: civil-

rights lawsuits under § 1983. App. 4a. This Court has
acknowledged this “effective deterrent” as an alterna-
tive to the scorched-earth approach of excluding evi-
dence. Hudson, 547 U.S. at 596–97. Because § 1983
suits are now widely available to remedy constitu-
tional violations by the police, whereas they were not
when the exclusionary rule was first developed,
“[r]esort to the massive remedy of suppressing evi-
dence of guilt is unjustified.” Id. at 599.

These alternative deterrents are much more apt

where, as here, a single actor in a unique circum-
stance—rather than law enforcement at large—is the
one in need of deterrence. Mayer, acting alone, in bad
faith, and outside of the investigative team, violated
Galloway’s privilege and did not convey the fact of
privilege to the FHPD.

Conversely, the investigative team—the FHPD—

acted in objectively good faith. This is a necessary cor-
ollary to the exclusionary rule, where application
“varies with the culpability of the law enforcement
conduct.” Herring, 555 U.S. at 143. “When the police
 25

act with an objectively reasonable good-faith belief

that their conduct is lawful, or when their conduct in-
volves only simple, isolated negligence, the deterrence
rationale loses much of its force and exclusion cannot
pay its way.” Davis, 564 U.S. at 238 (cleaned up). This
is because “the officer is acting as a reasonable officer
would and should act in similar circumstances.” Leon,
468 U.S. at 920 (cleaned up). “Excluding the evidence
can in no way affect his future conduct unless it is to
make him less willing to do his duty.” Id. (cleaned up).
Justice White foreshadowed the good-faith exception
in 1983, noting, “It would be surprising if the suppres-
sion of evidence garnered in good-faith, but by means
later found to violate the Fourth Amendment, did not
deter legitimate as well as unlawful police activities.”
Gates, 462 U.S. at 258 (White, J., concurring).

In this case, the privileged nature of the tip was

discovered long after the evidence from the tip had
been collected. Nothing about the tip as reported to
Nebus suggested any form of privilege, as the Michi-
gan Court of Appeals credited. See App. 16a. Instead,
the tip pointed more toward an accomplice or lay con-
fidant. See App. 16a. Moreover, the laws regarding
confidentiality of polygraphs and attorney-client com-
munications are so strict, and the latter especially sa-
cred, that the chances that the tip came from a breach
of either privilege were staggeringly low.

Given the good faith of Nebus and his team, the

exclusionary rule’s application in this and similar
cases will not “instill in those particular officers, or in
their future counterparts, a greater degree of care to-
ward the rights of an accused.” Tucker, 417 U.S. at
447. On the contrary, exclusion will fail to deter police
 26

misconduct —and even worse, it will collaterally deter

good police work. Suppose the tip in this case would
have led the police to find Danielle, whether deceased
or clinging to life. It cannot be that the police must
refuse to follow such tips where they lead unless and
until they thoroughly vet the tip to ensure no privilege
is involved. That cannot be the correct incentive to
give police, especially in a missing person case such as
this. Exclusion in this case would do nothing more
than “discourage police from reasonable and proper
investigative actions, [and] hinder[ ] the solution and
even the prevention of crime.” Gates, 462 U.S. at 258
(White, J., concurring). It will chill investigations.

The FHPD’s “official action” was “pursued in com-

plete good faith” when they investigated what they le-
gitimately and reasonably believed to be an anony-
mous tip. Tucker, 417 U.S. at 447. The “official action”
at issue was not the conveyance of the tip from Mayer
to Nebus. As more fully discussed in Argument II be-
low, Mayer was not a member of the investigative
team. He was a passthrough for what appeared to
Nebus to be an anonymous tip, despite the later dis-
covery of privilege. And even if Mayer’s conveyance of
the tip could be considered an official act under
Tucker, the bad faith of it lay solely with Mayer.
Nebus received the information in good faith because
it was not apparent that the tip came from a privi-
leged source. Indeed, the Michigan Court of Appeals
found the trial court’s conclusion that Nebus knew or
should have known the tip was privileged to be “tenu-
ous”. App. 15a. The state appellate court’s statement
that Nebus “suspected” it might be privileged does not
indicate that he failed to act in good faith. App. 15a.
Nebus simply believed it to be anonymous, and
 27

anonymity by no means invariably indicates privilege.

See App. 16a. “It is one thing for the criminal to go
free because the constable has blundered,” but “[i]t is
quite another to set the criminal free” when “the con-
stable has scrupulously adhered to governing law.”
Davis, 564 U.S. at 24.

Notably, this Court’s good-faith cases involve good

but mistaken faith, whereas this case involves pure
good faith. See Davis, 564 U.S. at 231 (reliance on ap-
pellate precedent that is later overturned); Herring,
555 U.S. at 145–46 (reliance on erroneous warrant in
system); Evans, 514 U.S. at 14–15 (same); Illinois v.
Krull, 480 U.S. 340, 349–50 (1987) (reliance on subse-
quently invalidated statute); and Leon, 468 U.S. at
922 (reliance on facially valid but later invalidated
warrant). And even if Nebus and the FHPD were neg-
ligent—which the State strongly contests—that still
would not be enough for exclusion. See Davis, 564 U.S.
at 238. The law “cannot realistically require that [a]
policeman investigating serious crimes make no er-
rors whatsoever.” Tucker, 417 U.S. at 446. “The pres-
sures of law enforcement and the vagaries of human
nature would make such an expectation unrealistic.”
Id.

In sum, the circumstances of this case place negli-

gible weight on the exclusion side of the scale com-
pared to the much heavier societal costs. To impute
the misconduct of an outside officer to the investiga-
tive team would give defendants a windfall with mar-
ginal deterrent benefit.
 28

C. The societal costs paid by exclusion are

too great to bear where the jury’s
evidentiary picture will be significantly
skewed and a murderer may go free.
The costs to be paid in this case cannot be over-
stated. Both those to the truth-seeking process and
those to the society at large will come due.

Begin with the jury’s deprivation of reliable,

highly probative evidence of Galloway’s guilt. There is
no doubt about its reliability: it ultimately came from
Galloway himself. The FHPD validated the tip by
finding most of the items in the locations mentioned.
Not only that, but they obtained security footage of
Galloway walking along the road near Danielle’s
apartment where her items were found, further rein-
forcing the tip’s validity. The footage additionally
showed Galloway in a nearby Tim Hortons restau-
rant, where he used the business’s phone (to avoid
cell-phone tracking) to call a cab. A cab arrived (as de-
scribed in the tip and verified by the driver) and took
him to an apartment building that was, not so coinci-
dentally, across the street from MetLife where Gallo-
way had left his allegedly dysfunctional car earlier
that day. The veracity of the tip is unassailable.

This evidence inexorably inculpates Galloway in

Danielle’s disappearance and murder. The level of
planning and sophistication in his plot would be im-
pressive if it were not so chillingly devious. As Michi-
gan Supreme Court Justice Viviano noted, “This evi-
dence is both reliable and probative, and its suppres-
sion will certainly impair the jury’s truth-finding abil-
ity.” App. 5a (emphasis added).
 29

Undoubtedly, the pre-tip evidence also inculpates

Galloway. This includes his infatuation with Danielle,
him last being seen with her, their cell phones track-
ing together, his failed attempt to remove her DNA
from his bedroom, and his lie to police about seeing
her months prior. But without the post-tip evidence,
the jury will not see the true lengths to which Gallo-
way went to target, abduct, and murder Danielle. The
post-tip evidence shows not only the consciousness of
guilt but also why Danielle has never been found and
is, in fact, deceased: Galloway laboriously planned his
movements and his disposal of Danielle’s body.

Critically, with the admission of only the pre-tip

evidence, Galloway could manipulate the evidence to
make it seem like Danielle simply went home after
they were together in Berkley. After both their phones
pinged at Galloway’s house, Danielle’s tracked back to
her apartment, where her vehicle was found. But the
post-tip evidence reveals the truth—that it was not
Danielle but Galloway who drove her car (with her
phone) back to her apartment, left it there, and then
walked to the Tim Hortons to catch a cab back to his
car, bringing his plan full circle. The trial court has
even indicated that this ruling could affect the admis-
sibility of additional evidence collected from post-tip
search warrants, further gutting the evidence of guilt.
App. 112a. Accordingly, to withhold the post-tip evi-
dence from the jury would considerably distort the
truth of what happened to Danielle.

There are also broader societal costs. Without the

post-tip evidence, this crime may “go unsolved” and
Galloway “unpunished.” Montejo v. Louisiana, 556
U.S. 778, 796 (2009). This “jackpot” would be
 30

“enormous,” amounting to “a get-out-of-jail-free card.”

Hudson, 547 U.S. at 595. Galloway is only 37 years
old, leaving him plenty of years and youth to attack—
and even kill and make vanish—more women. 6

In the end, the costs of exclusion in this case are

much weightier than any potential deterrent effect on
a single outside officer. Thus, “the rule does not pay
its way.” Montejo, 556 U.S. at 797 (cleaned up). The
trial court’s order should be reversed.

II. By holding the State responsible for

inculpatory information withheld by an
officer outside the prosecution team, this
case conflicts with Brady v. Maryland and its
progeny, which absolve the prosecution of
responsibility for even exculpatory
information held by an outside officer.
There is an additional cost to the justice system if
exclusion stands in this case. State and federal courts
agree that the prosecution’s duty to discover and dis-
close exculpatory evidence under Brady reaches only
as far as the “team” involved in the case and not to
outside officers. Here, however, the prosecution was
held responsible for the actions and knowledge of an
outside officer who possessed inculpatory information
and withheld the fact that the information was privi-
leged. Both principles cannot be true. Either the pros-
ecution is liable for the information held by officers

6 Galloway is already serving a prison sentence of 16 to 35 years

for the kidnapping and assault of another woman approximately
three months prior to Danielle’s disappearance. See Michigan
Dept. of Corr., https://mdocweb.state.mi.us/otis2/otis2pro-
file.aspx?mdocNumber=442572 (last accessed on Aug. 15, 2024).
 31

outside the investigative team, or it is not. Thus, cer-

tiorari is required to conform this case with the
longstanding principle of team-only liability.

A. Liability for undisclosed exculpatory

evidence is limited to the prosecution
“team.”
This Court has long held that “the core of our
criminal justice system” is “the injustice that results
from the conviction of an innocent person,” such that
“it is far worse to convict an innocent man than to let
a guilty man go free.” Schlup v. Delo, 513 U.S. 298,
325 (1995) (cleaned up). Yet, the incongruent princi-
ples at play here contravene that fundamental ethic.

The government has an “affirmative duty to dis-

close evidence favorable to a defendant,” whether ex-
culpatory or impeaching, requested or not, and irre-
spective of good or bad faith. Kyles, 514 U.S. at 432–
33 (citing Brady, 373 U.S. at 87, United States v.
Agurs, 427 U.S. 97 (1976), and United States v. Bag-
ley, 473 U.S. 667, 682 (1985)). The rule applies to “ev-
idence known only to police investigators and not to
the prosecutor.” Id. at 438. “This in turn means that
the individual prosecutor has a duty to learn of any
favorable evidence known to the others acting on the
government’s behalf in the case, including the police.”
Id. at 437.

The contours of the latter holding have been de-

bated since its announcement nearly thirty years ago.
See, e.g., Hunter, 32 F.4th at 35 (“But who is ‘acting
on the government’s behalf’ in a case?”). But the fed-
eral and state courts have reached a unanimous
 32

conclusion: the government’s Brady obligation ex-

tends only to the prosecution or investigative “team.”
See, e.g., Sutton v. Carpenter, 617 F. App’x 434, 441
(6th Cir. 2015) (citing cases from the Second, Fifth,
Seventh, and Eleventh Circuits); and Hall v. State,
283 S.W.3d 137, 170 (Tex. App.—Austin 2009) (noting
“the concept of a ‘prosecution team’ that has developed
in the case law to define the universe of prosecutors
and investigators extending beyond the prosecutor’s
office whose knowledge of Brady material should be
imputed to the prosecutor.”).

The prosecutor’s duty under Kyles does not pro-

ceed ad infinitum. Kyles cannot “be read as imposing
a duty on the prosecutor’s office to learn of infor-
mation possessed by other government agencies that
have no involvement in the investigation or prosecu-
tion at issue.” United States v. Morris, 80 F.3d 1151,
1169 (7th Cir. 1996). An “unlimited duty” on the pros-
ecution “would inappropriately require us to adopt a
monolithic view of government that would condemn
the prosecution of criminal cases to a state of paraly-
sis.” United States v. Avellino, 136 F.3d 249, 255 (2d
Cir. 1998) (cleaned up). For instance, operation “under
the same sovereign” is not enough. Hall v. Mays, 7
F.4th 433, 445 (6th Cir. 2021).

Federal courts apply the team-based principle to

this day. See, e.g., United States v. Mitrovich, 95 F.4th
1064, 1071 (7th Cir. 2024).
 33

B. This “team” principle must apply equally

to an outside officer’s withholding of
inculpatory, yet privileged, information.
The law developed from Kyles holds that even if a
government agent outside the investigative or prose-
cution team possesses exculpatory information, the
prosecution is not held responsible for the failure to
discover and disclose that information. In conflict with
Kyles, in this case, if that same outside officer instead
possesses inculpatory information but withholds the
fact of privilege, due process is violated.

These opposing principles cannot coexist. As the

law stands right now, an outside officer in possession
of exculpatory evidence is punished less harshly—that
is, not at all—than when that same officer possesses
inculpatory evidence obtained from a privileged
source. Yet, in both situations, the investigative team
lacks any knowledge of the offending act. Those are
parallel situations with perpendicular remedies.

In the Brady/Kyles context, the law recognizes the

difficulty in holding the team responsible for infor-
mation possessed by those to whom they have no con-
nection. Conversely, the law does not hold the team to
that same standard with respect to whether sources
of information are potentially privileged. While Brady
and Kyles do not require the prosecution to seek out
all exculpatory information from all sources, this case
turns that principle on its head with respect to incul-
patory information. The police and prosecution must
now exhaustively investigate every piece of infor-
mation and evidence they encounter to ensure none of
it came from a privileged source—even where they
have no reason to suspect such a source.
 34

Alternatively, the undisclosed, privileged nature

of a piece of information could be considered exculpa-
tory or impeachment information under Brady. There,
the Kyles rule should control and absolve the investi-
gative team of any responsibility for the information
being privileged. In that way, the two principles at is-
sue would not be in competition but would be a
straightforward application of the Brady/Kyles princi-
ples. Either way, the team would not be liable.

C. The State was held to a different

standard than the well-established
“team” principle, conferring liability for
an outside officer’s withheld knowledge
of a breached privilege.
Because Mayer was not part of the team in this
case, his misdeeds should not be imputed to the pros-
ecution under Kyles. A hypothetical is instructive. Say
the Troy Police arrested someone who said he had ex-
culpatory information about the Galloway case. The
arresting officer then puts that information in a police
report, and that is where it stays. The prosecution
team for this case does not learn of that information
until after Galloway is convicted at trial. The Troy re-
port then surfaces and becomes the subject of a post-
conviction hearing, at which it is determined that the
information was material under Brady. Under the
Kyles team principle, there would not be a constitu-
tional violation even though the defense could have
used that information at trial to argue that Galloway
did not commit the crime.

In this case, however, Mayer, as an outside actor,

had not exculpatory information but inculpatory
 35

information and failed to disclose to the FHPD that it

was privileged. Mayer was not “acting on the govern-
ment’s behalf in the case.” Kyles, 514 U.S. at 437. The
Troy Police, over which Mayer presided, was not the
investigating agency. Mayer himself did not investi-
gate the tip, nor did he assign any of his officers or
detectives to do so. While he did create a “staff inspec-
tion file” to store his notes from his call with Hoppe, it
was under an “Assist Other Departments” heading.
(5/3/22 Evid. Hr’g Tr. at 38.) This reflected a relaying
of information from an outside agency to the investi-
gative team. The Michigan Court of Appeals acknowl-
edged that “Mayer’s own police department was oth-
erwise uninvolved in the investigation . . . .” App. 19a.

Despite Mayer’s disconnect from this investiga-

tion, the prosecution was held responsible for the fail-
ure to discover his deceit even though the evidence
tended to show guilt rather than innocence. The exon-
eration of an innocent person with the disclosure of
exculpatory evidence is certainly of utmost im-
portance, even more so than vindicating the attorney-
client privilege. See Schlup, 513 U.S. at 325. Even so,
federal constitutional law under Brady and its prog-
eny distinguishes between those police officials who
are inside the investigative team and those outside
the investigative team. The Michigan courts misap-
plied this constitutional principle to the privileged
materials in this case.

At the end of the day, Kyles’ team-only liability

should apply equally to inculpatory information as it
does to exculpatory information. The Michigan courts’
failure to harmonize these principles requires this
Court’s review.
 36

CONCLUSION
The petition for a writ of certiorari should be
granted.

Respectfully submitted,

Dana Nessel
Michigan Attorney General

Ann M. Sherman
Solicitor General
Counsel of Record
P.O. Box 30212
Lansing, Michigan 48909
ShermanA@michigan.gov
(517) 335-7628

John Pallas
Division Chief
Scott Shimkus
Assistant Attorney General
Criminal Appellate and
Parole Appeals Division

Attorneys for Petitioner

Dated: AUGUST 2024