The court ruled to suppress the evidence (namely an alleged handgun, suspected marihuana, suspected psilocybin mushrooms) due to the fact that the People failed to rebut the burden that the warrantless search was unconstitutional and/or failed to provide evidence that an exception to the Search Warrant requirement existed at the time of the search and seizure.
The People filed a Motion for Reconsideration of Order Granting Defendant’s Motion to Suppress Evidence.
A motion for reconsideration must demonstrate a “palpable error by which the court and the parties have been misled and show that a different disposition of the motion must result from correction of the error.” Charbeneau v Wayne Co Gen Hosp, 158 Mich App 730, 733; 405 NW2d 151, 153 (1987).
The People presented evidence from the transcript to again attempt to rebut the burden regarding the warrantless search being unconstitutional and/or provide evidence that an exception to the Search Warrant requirement existed.
The People sited to the testimony of Deputy Tath who stated the Defendant consented, and listed the items that were seized – “I seized suspected marijuana, suspected psilocybin mushrooms, and I believe a handgun.” The issue with this testimony being the People’s evidence does not present a timeline for when consent was given.
The People have the burden to establish Defendant’s consent to search before any evidence could lawfully be seized as an exception to the warrant requirement, the failure by the People to establish that specific timeline was fatal to the People’s argument.
Therefore, the Prosecution has not convinced the Court that the prior Order of the Court was palpable error.
If you or someone you know has been accused of a crime or DUI. Call Komorn Law and turn the odds in your favor. Call Now 248-357-2550
DISCLAIMER This website and/or post may contain re-posted content, opinions, comments, ads, third party posts, outdated information, posts from disgruntled persons, posts from those with agendas, private stuff, work related information, non work related information and general internet BS. Therefore…Before you believe anything on the internet regarding anything and everything – do your research on “Official Government and State Sites”, Call the Michigan State Police, Check the State Attorney General Website and Consult an Attorney – Use Your Brain. You’re on the internet.
The court granted our motion to Suppress and Dismiss all evidence
“ The manner by which the evidence was seized violated the accused 4th Amendment Rights, and therefore that evidence is suppressed and all charges shall be dismissed. “
Just leaving Gaylord, where they are still felony prosecuting folks for cannabis. We just completed the second day of an evidentiary hearing and Komorn Law PLLC is happy to report the the Court granted our motion to Suppress and Dismiss all evidence; which included all of the alleged felony Marihuana evidence and the alleged Psilocybin evidence.
The Judge, was well prepared, well researched and delivered a lengthy and detailed analysis of the issues which included but was not limited to the following:
Warrantless Searches are Presumptively invalid, unless the state establishes an exception.
In this case the execution of the eviction order was a recognized exceptions. However that exception is limited to Safety Sweep, which had been exhausted. The next factual sequence involved a search of a drawer, where a firearm was allegedly found.
The Court determined this was an unreasonable search and seizure of the firearm, but this did us no good because my client was not charged with any gun charges.
The court went on to find somewhere in the time line of the execution of the order of eviction, my client allegedly consented to the search, ( usually not good). What was remarkable to me was that the Court found that while there was consent to search, that consent does not allow the seizure of property that is not illegal or probable cause of a crime ( in this case “ marihuana”).
The Court went on to read from MRTMA section 2/4/5/15, correctly concluding that the 10 ounces within the dwelling was not illegal ( civil infraction) and not a crime, and even consent to search does not provide consent to seize items that were not illegal.
The Court then went on to find that the State did not carry its burden of rebutting the presumption of the warrantless search and seizure of the alleged psilocybin. I kept waiting for the judge to find an exception or some reason to justify the search and seizure but it never happened. I even held my breath for the “Good Faith” exception ruling that sometimes happens and that to was not a finding the court made.
Anyhow, it is always rewarding as a lawyer when you go to lengths to establish the illegality or unconstitutionality of a search ( or some government action) and the court agrees. Prosecutor threatening appeal. For now we are calling it a Huge Win.
DISCLAIMER In a legal environment that continues to evolve, it is essential to stay informed and seek guidance from knowledgeable professionals. Before acting on any information you find on the internet, this website, any linked website, any referring website or any verbal or written information consult a licensed attorney. Contact Komorn Law today to discuss your case and learn how we can assist you in navigating the complexities of Michigan’s laws. Consult an Attorney – Remember you’re on the internet.
This one was an epic battle, that started right before the shut down in March of 2020 and involved the following:
Preliminary Exam 1.
After filing several motions to be heard at the preliminary exam, the police failed to appear and the charges were dismissed.
The charges were then re-issued.
At the arraignment on the re-issued charges and in response to my arguments for personal bond, the court said, “ Counsel that may be true that your client has not had an alcohol related driving offense for over 12 years but what about all the times he drove drunk and wasn’t arrested? Bond is set at 5,000 cash.
Motion to Recuse
Based upon the aforementioned statements by the Court, I was forced to move to Disqualify the Court for bias.
The Court disagreed.
Appeal to Circuit Court ( Regarding the Arraignment and Setting of Bond).
We appealed the District Court Judges Ruling at the arraignment , setting of Bond and its denial of my motion to disqualify the Court for bias.
The Circuit Court ( acting as the Appellate Court) reversed the District Court’s denial of my Motion to Disqualify, reset the bond as a personal bond and remanded to the District Court for a Preliminary Exam to be heard by a different Judge.
Preliminary Exam 2
We refilled our motions in the District Court and appeared for the exam.
The facts involved a vehicle reported to be stalled out, in a church parking lot, and the police were called for a welfare check (although what unfolded seemed to have little to do with the welfare of my client).
Described as standing outside of the vehicle at the time the police arrived for the welfare check, the vehicle was inoperable, not working, stalled out, the engine was not on or working and no keys were found at the scene.
Allegedly, wine bottles were found in the back of the inoperable vehicle, allegedly my client failed the standard and non standardized field sobriety test. He was subsequently arrested, and taken to the stations for Breath Testing.
Allegedly my client refused or technically refused to submit a breath sample, and the arresting officer acting as the affiant, sought out and obtained a search warrant for the blood of my client. The Blood results allegedly were above the legal limit of .08 g/ml and above the High BAC threshold of 0.17 per milliliters of Blood.
During the testimony of the arresting officer, (and not mentioned in any of the police reports) for the first time it was revealed that allegedly my client was observed about an hour prior to the “welfare check” in the driver seat behind the wheel of the vehicle (he was later observed standing near at the time of the welfare check).
This revelation by the officer also included the following: I observed your client behind the wheel of the vehicle we later saw him standing next to, at that time, the vehicle was being pushed by a younger gentleman.
Your client didn’t say anything to me, but the young man pushing the vehicle did say , the car broke down, and I am pushing it out of the road.”
Other highlights from the exam included testimony surrounding the affidavit and search warrant for the blood.
After some hemming and hawing, the court found probable cause existed to bind my client over for Trial.
The Circuit Court.
We filed additional motions in the circuit court. As it goes sometimes, despite perfecting service through the on-line filing system, providing courtesy copies to the Court, we appeared three times, and each time a different prosecutor appeared for the State.
Each time the new assistant prosecutor appeared, they knew nothing about the motions, didn’t receive them, are not connected to the on line filing system, and didn’t even know that the hearing and motions were scheduled.
The Wheels of Justice Grind Slow
Today we finally got an opportunity to argue our motions, or at least one of them. The Court it turned out was in the middle of a jury trial but was able to get us in during the lunch break for some limited arguing.
All involved ( The Judge, the assistant Prosecutor) commented that the facts made this an interesting case. Generally, the essential elements or issues that are needed to prove a Drunk driving case/ Operating While Intoxicated case, are that the person was intoxicated at the time they were operating the motor vehicle.(1)
if a person pulls over after driving, and then consumes alcohol while in their vehicle without any intention of further driving, even while stationary in a parking lot, would be ill advised and very likely to result in an arrest for Operating While Intoxicated, despite not actually driving, because the driver would be in “actual physical control of the vehicle.”
Likewise, pulling over because a driver feels intoxicated with the intention of not driving but instead sleeping it off, would also likely result in an arrest, should police contact occur.
Other States allow for a driver who thinks they may be impaired to pull over, rest and even sleep, without being charged with “operating” while intoxicated.
In Michigan the word “operating” has been interpreted broadly is defined as driving or having actual physical control of the “vehicle.”
The cases and jurisprudence in Michigan that have interpreted these rules are generally not favorable for the accused/ driver.
The reason why this case was interesting, were mostly focused on the legal definitions of “Motor Vehicle” and Vehicle” ( See below). (2)
The Court Decision
Today the Court heard arguments on these issues. The Court ultimately agreed with me, that in fact the testimony at the preliminary exam of the arresting officer who had “observed my client behind the wheel of the vehicle we later saw him standing next to, at that time, the vehicle was being pushed by a younger gentleman.
(Your client didn’t say anything to me, but the young man pushing the vehicle did say , the car broke down, and I am pushing it out of the road)” had described a situation that did not include evidence of “a motor vehicle” or a “vehicle” as those terms are defined within Michigan Law.
The Court found the District Court Judge had erred in making the decision to bind over my client for trial, and that probable cause did not exist or was not at the preliminary exam, to wit: The State had failed to prove that probable cause existed that my client was “operating a moving vehicle/ vehicle” while intoxicated, and dismissed all of the charges.
THE CODE OF CRIMINAL PROCEDURE (EXCERPT) Act 175 of 1927
(g) “Vehicle” means that term as defined in section 79 of the Michigan vehicle code, 1949 PA 300, MCL 257.79. (below)
MICHIGAN VEHICLE CODE (EXCERPT) Act 300 of 1949
Sec. 79.
“Vehicle” means every device in, upon, or by which any person or property is or may be transported or drawn upon a highway, except devices exclusively moved by human power or used exclusively upon stationary rails or tracks and except, only for the purpose of titling and registration under this act, a mobile home as defined in section 2 of the mobile home commission act, Act No. 96 of the Public Acts of 1987, being section 125.2302 of the Michigan Compiled Laws.(4)
“Motor vehicle” means every vehicle that is self-propelled, but for purposes of chapter 4, motor vehicle does not include industrial equipment such as a forklift, a front-end loader, or other construction equipment that is not subject to registration under this act.
Motor vehicle does not include a power-driven mobility device when that power-driven mobility device is being used by an individual with a mobility disability.
Motor vehicle does not include an electric patrol vehicle being operated in compliance with the electric patrol vehicle act, 1997 PA 55, MCL 257.1571 to 257.1577.
Motor vehicle does not include an electric personal assistive mobility device. Motor vehicle does not include an electric carriage.
Motor vehicle does not include a commercial quadricycle. Motor vehicle does not include an electric bicycle. Motor vehicle does not include an electric skateboard.
FOOTNOTES
Footnote –(1)
Mi Crim Jury Instructions 15.1, 15.1a, 15.2, 15.3
Footnote –(2)
777.1 Definitions.
THE CODE OF CRIMINAL PROCEDURE (EXCERPT) Act 175 of 1927
Sec. 1. As used in this chapter:
(a) “Aircraft” means that term as defined in section 2 of the aeronautics code of the state of Michigan, 1945 PA 327, MCL 259.2.
(b) “Departure” means that term as defined in section 31 of chapter IX.
(c) “Homicide” means any crime in which the death of a human being is an element of that crime.
(d) “Intermediate sanction” means that term as defined in section 31 of chapter IX.
(e) “ORV” means that term as defined in section 81101 of the natural resources and environmental
protection act, 1994 PA 451, MCL 324.81101.
(f) “Snowmobile” means that term as defined in section 82101 of the natural resources and environmental
protection act, 1994 PA 451, MCL 324.82101.
(g) “Vehicle” means that term as defined in section 79 of the Michigan vehicle code, 1949 PA 300, MCL
257.79.
(h) “Vessel” means that term as defined in section 80104 of the natural resources and environmental
“Motor vehicle” means every vehicle that is self-propelled, but for purposes of chapter 4, motor vehicle does not include industrial equipment such as a forklift, a front-end loader, or other construction equipment that is not subject to registration under this act. Motor vehicle does not include a power-driven mobility device when that power-driven mobility device is being used by an individual with a mobility disability. Motor vehicle does not include an electric patrol vehicle being operated in compliance with the electric patrol vehicle act, 1997 PA 55, MCL 257.1571 to 257.1577. Motor vehicle does not include an electric personal assistive mobility device. Motor vehicle does not include an electric carriage. Motor vehicle does not include a commercial quadricycle. Motor vehicle does not include an electric bicycle. Motor vehicle does not include an electric skateboard.
Sec. 79. “Vehicle” means every device in, upon, or by which any person or property is or may be transported or drawn upon a highway, except devices exclusively moved by human power or used exclusively upon stationary rails or tracks and except, only for the purpose of titling and registration under this act, a mobile home as defined in section 2 of the mobile home commission act, Act No. 96 of the Public Acts of 1987, being section 125.2302 of the Michigan Compiled Laws.
If you or someone you know has been accused of a crime, DUI or Drugged Driving. Call Komorn Law and turn your defense into an offense. Call Now 248-357-2550
DISCLAIMER This post may contain re-posted content, opinions, comments, ads, third party posts, outdated information, posts from disgruntled persons, posts from those with agendas, private stuff and general internet BS. Therefore…Before you believe anything on the internet regarding anything – do your research on “Official Government and State Sites”, Call the Michigan State Police, Check the State Attorney General Website and Consult an Attorney – Use Your Brain. You’re on the internet.
We defended our client Michael Thue who was facing a possible life sentence for the following charges in Grand Traverse Court.
1. CONTROL SUBSTANCEDEL/MANU 5-45 KILGRAM 2. POSSESSION SCHEDULE 5 AND LSD 02/14/2023 3. HABITUAL OFFEN-SUP WAR/4 CONV 02/14/2023 4. CONT SUBSTANCE-POSS OF MARIJUANA 02/14/2023
Case Summary
After a SWAT style raid on Thue’s place by law enforcement where they burned his plants and removed several other items Thue retained Komorn Law and lead trial Attorney Michael Komorn jumped in the trench next to his client and started gathering information to aggressively defend him as he does for all his clients.
This was Thue’s 4th strike which means he could have been sentenced under the Michigan Habitual Offenders Sentencing Laws.
This could have been a life sentence (more detail below).
The Judge, who was familiar with Thue, eluded to the fact that Thue being charged with a life defense and now reduced to a misdemeanor indicates the laws in this area are a mess. The judge also said that smaller cannabis entities are being put out of business by larger corporations and couldn’t believe he had to pass sentence stating he was protecting the revenues of the State of Michigan. The judge insisted that Thue had to plea to something in order to be a conviction which ended up being growing more plants than allowed.
The conditions of the 2 year probation sentence were to comply with MMMA laws and MRTMA laws plus costs $800.
State or Federal Cases
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“‘A trial court, when sentencing a defendant as an habitual offender, must exercise its discretion in setting the maximum sentence, that is, it is not required by law to increase the maximum sentence.’” People v Bonilla-Machado, 489 Mich 412, 429-430 (2011), quoting People v Turski, 436 Mich 878, 878 (1990) (remand was appropriate where the trial court “erroneously asserted that it was bound by law to enhance the maximum sentences”).
A.Second Habitual Offender Status (HO2)
This discussion presumes the prosecutor is seeking an enhanced sentence under MCL 769.13. See Section 4.2 for more information on the prosecutor’s right to seek an enhanced sentence.
A person is a second habitual offender if he or she is convicted of a felony or attempted felony and has been previously convicted of a felony or attempted felony in Michigan or in another state if the violation would have been a felony violation in Michigan. See MCL 769.10(1). A second habitual offender is subject to the following penalties, except as otherwise provided in MCL 769.10 and MCL 771.1:
•If the subsequent felony is punishable on first conviction by a term less than life imprisonment, the court “may place the person on probation[1] or sentence the person to imprisonment for a maximum term that is not more than 1-1/2 times the longest term prescribed for a first conviction of that offense or for a lesser term.” MCL 769.10(1)(a).
•If the subsequent felony is punishable on first conviction by life imprisonment, the court “may place the person on probation[2] or sentence the person to imprisonment for life or for a lesser term.” MCL 769.10(1)(b).
Any term of years sentence must be indeterminate, meaning it must have a minimum and maximum sentence “in terms of years or a fraction of a year[.]” MCL 769.10(2). The maximum sentence must not be “less than the maximum term for a first conviction.” Id.
B.Third Habitual Offender Status (HO3)
This discussion presumes the prosecutor is seeking an enhanced sentence under MCL 769.13. See Section 4.2 for more information on the prosecutor’s right to seek an enhanced sentence.
A person is a third habitual offender if he or she is convicted of a felony or attempted felony and has been previously convicted of any combination of two or more felonies or attempted felonies in Michigan or in another state if the violations would have been felony violations in Michigan. A third habitual offender is subject to the following penalties, except as otherwise provided in MCL 769.11 and MCL 771.1:
•If the subsequent felony is punishable on first conviction by a term less than life imprisonment, the court “may sentence the person to imprisonment for a maximum term that is not more than twice the longest term prescribed by law for a first conviction of that offense or for a lesser term.” MCL 769.11(1)(a).
•If the subsequent felony is punishable on first conviction by life imprisonment, the court “may sentence the person to imprisonment for life or for a lesser term.” MCL 769.11(1)(b).
Any term of years sentence must be indeterminate, meaning it must have a minimum and maximum sentence “in terms of years or a fraction of a year[.]” MCL 769.11(2). The maximum sentence must not be “less than the maximum term for a first conviction.” Id.
C.Fourth Habitual Offender Status (HO4)
This discussion presumes the prosecutor is seeking an enhanced sentence under MCL 769.13. See Section 4.2 for more information on the prosecutor’s right to seek an enhanced sentence.
A person is a fourth habitual offender if he or she is convicted of a felony or attempted felony and has been previously convicted of any combination of three or more felonies or attempted felonies in Michigan or in another state if the violations would have been felony violations in Michigan. A fourth habitual offender is subject to the following penalties:
•“If the subsequent felony is punishable upon a first conviction by imprisonment for a maximum term of 5 years or more or for life, the court, except as otherwise provided in this section or [MCL 771.1], may sentence the person to imprisonment for life or for a lesser term.” MCL 769.12(1)(b).
•“If the subsequent felony is punishable upon a first conviction by imprisonment for a maximum term that is less than 5 years, the court, except as otherwise provided in this section or [MCL 771.1], may sentence the person to imprisonment for a maximum term of not more than 15 years.” MCL 769.12(1)(c).
In addition to the general maximum sentence enhancement provisions set out in MCL 769.12 for fourth habitual offenders, MCL 769.12(1)(a) provides for a mandatory minimum sentence of 25 years’ imprisonment for certain violent offenders. The sentencing court must impose a sentence of imprisonment for not less than 25 years if:
•the offender has been convicted of three or more prior felonies or felony attempts, including at least one listed prior felony,6 and
•the subsequent felony that the offender is convicted of committing or conspiring to commit is a serious crime. MCL 769.12(1)(a).
For purposes of MCL 769.12(1)(a) only, “[n]ot more than [one] conviction arising out of the same transaction shall be considered a prior felony conviction[.]” MCL 769.12(1)(a).
The 25-year mandatory minimum sentence imposed by MCL 769.12(1)(a) does not constitute cruel or unusual punishment under the Michigan Constitution, Const 1963, art 1, § 16.7People v Burkett, 337 Mich App 631, 635-642 (2021) (rejecting what it characterized as a facial challenge to MCL 769.12(1)(a)). “Under the Michigan Constitution, the prohibition against cruel or unusual punishment includes a prohibition on grossly disproportionate sentences.” Burkett, 337 Mich App at 636 (cleaned up). “Legislatively mandated sentences are presumptively proportional and presumptively valid,” and “to overcome the presumption that the sentence is proportionate, a defendant must present unusual circumstances that would render the presumptively proportionate sentence disproportionate.” Id. at 637 (quotation marks and citations omitted). A three-part test is used to determine whether a punishment is cruel or unusual: “(1) the severity of the sentence imposed and the gravity of the offense, (2) a comparison of the penalty to penalties for other crimes under Michigan law, and (3) a comparison between Michigan’s penalty and penalties imposed for the same offense in other states.” Id. at 636-637 (quotation marks and citation omitted). “Consideration of the three-part test leads to the conclusion that the minimum sentence mandated by MCL 769.12(1)(a) is neither cruel nor unusual” because the statute “only applies to individuals convicted of a serious felony who have previously been convicted of three or more felonies, at least one of which is a listed prior felony,” and it “reflects a rational legislative judgment, entitled to deference, that offenders who have committed serious or violent felonies and who continue to commit felonies must be incapacitated.” Burkett, 337 Mich App at 642 (quotation marks and citation omitted).
Any term of years sentence must be indeterminate, meaning it must have a minimum and maximum sentence “in terms of years or a fraction of a year[.]” MCL 769.12(2). The maximum sentence must not be “less than the maximum term for a first conviction.” Id.
1 See Section 9.2 for more information about probation.
2 See Section 9.2 for more information about probation.
6 Only convictions under the specific Michigan statutes listed in MCL 769.12(6)(a) constitute listed prior felonies for purposes of MCL 769.12(1)(a); a conviction in another jurisdiction for an offense comparable to a listed offense does not constitute a listed prior felony for purposes of the mandatory 25-year minimum sentence under MCL 769.12(1)(a). People v Pointer-Bey, 321 Mich App 609, 622-623 (2017) (noting that, unlike the general rule of MCL 769.12(1) that comparable out-of-state convictions are considered when determining fourth-habitual offender status, “MCL 769.12(6)(a) contains no indication that convictions under comparable statutes from other jurisdictions should be considered ‘listed prior felonies’ for purposes of MCL 769.12(1)(a),” and holding that the defendant’s conviction under a federal statute comparable to a Michigan statute listed in MCL 769.12(6)(a) could not be considered for purposes of MCL 769.12(1)(a)).
7 “If a punishment passes muster under the state constitution, then it necessarily passes muster under the federal constitution.” People v Burkett, 337 Mich App 631, 636 (2021) (quotation marks and citation omitted).
December 6, 2022 – Through the diligence and tenacity of trial attorney Michael Komorn and the team at Komorn Law. We are proud to announce – another case dismissed.
YPSILANTI, MI – Less than four months after a company sued Ypsilanti over the city’s marijuana business licensing process, the company has dropped the legal claims.
AMA Operations, LLC — a company that sought one of 10 local marijuana retailer permits — alleged in a lawsuit filed in December the process the city used to dole out the permits broke Michigan law and resulted in “preferential treatment” for competitors.
The company took issue with a scoring system used to rank applicants and sought a court order to nullify some competitors’ permits.
Oct 06, 2021YPSILANTI, MI – Ypsilanti’s Riverside Park will play host to the fourth-ever state-sanctioned cannabis consumption festival this weekend. Of-age attendees at Canna Jam can enjoy …
Jan 13, 2020LANSING, MI — Multiple defense attorneys say they would advise their clients refuse Michigan’s new statewide roadside drug tests. They’re too untrustworthy, they say. The …
Mar 30, 2021Roadside drug tests piloted in Michigan last year can’t immediately tell police if a driver is high, but they are expected to detect recent ingestion …
Mar 30, 2020ANN ARBOR, MI — The Hash Bash marijuana rally that was supposed to happen this Saturday in Ann Arbor is postponed until fall, but organizers …
DISCLAIMER This post may contain re-posted content, opinions, comments, ads, third party posts, outdated information, posts from disgruntled persons, posts from those with agendas and general internet BS. Therefore…Before you believe anything on the internet regarding anything – do your research on Official Government and State Sites, Call the Michigan State Police, Check the State Attorney General Website and Consult an Attorney – Use Your Brain.
