Summary:Komorn Law has won another case in Circuit Court. The Judge suppressed the 26 pounds of marijuana of evidence seized following a traffic stop and then lead to the dismissal of the case. The police conducted an unlawful inventory search, contrary to the police department’s established procedures.
Circuit Court Opinion of the Month: Unlawful Inventory Search The Honorable Julie A. O’Neill, of the 56A Judicial District Court, in May suppressed evidence seized following a traffic stop and then dismissed the case.
Judge O’Neill found that police conducted an unlawful inventory search, contrary to the police department’s established procedures, and, pursuant to People v. Toohey, 438 Mich. 265; 475 N.W.2d 16 (1991), the improperly seized evidence had to be suppressed.
Once the evidence was suppressed, there was no evidence to support bindover to circuit court, so the case was dismissed. The defendant was stopped by Potterville Police Chief Barry for speeding and improper use of a turn signal. The defendant did not have on his person his driver’s license, but subsequent investigation revealed that the defendant was properly licensed and had no outstanding warrants.
Chief Barry, upon approaching the pickup truck, saw a black plastic trash bag on the passenger seat; the Chief, who later testified he could smell marijuana, asked the driver multiple times about the contents of the bag; the defendant replied that it was trash.
The defendant also replied that he had some marijuana wax in his possession. Backup arrived, and the defendant was told to exit the vehicle; he complied and then locked it. He consented to a search of his person but declined a request by police to search the truck.
The driver was handcuffed and placed into the Chief’s vehicle. Officers looked through the windows of the pickup and noticed another plastic trash bag in the behind the seats, as well as a smaller plastic bag with a leafy, green substance visible.
The Chief called a prosecutor, who advised that an arrest could be made for the misdemeanor of not having a license in his possession. The driver was arrested. Later, 6 Criminal Defense Newsletter June 2021 during a search of the pickup truck, just over 26 pounds of marijuana was found.
The defendant challenged the arrest as illegal because, he argued, he constructively possessed his license. His wife was able to text a photo of the license, which Chief Barry was able to observe.
Judge O’Neill rejected that argument and held that the statute, M.C.L. 257.311, expressly requires a driver to have an operator’s license “in his or her immediate possession at all times.”
The defendant also challenged the inventory search as illegal, and Judge O’Neill, as noted above, agreed. The Toohey case requires that inventory searches be conducted “in accordance with established departmental procedures … and must Reports and Studies not be used as a pretext for criminal investigation.”
Judge O’Neill rejected the prosecution arguments, which included that police had probable cause to search due to either plain-view or the automobile exception.
The Charge – OWI (Accident and 17 nanograms of THC)
Set for Trial
Thursday, March 18, 2021 at 8:00 am. We arrived at the Roscommon District Court House and were prepared for a 2-day jury trial. We had been preparing for weeks prior for this ongoing case from two years ago (March 2019) that the prosecutor insisted on pursuing.
The Complaint
The Complaint against our client was an alleged OWI Operating While Intoxicated/ Under the Influence or a Controlled Substance. As with all OWI cases, we would also need to defend the lesser included charges of (Operating While Impaired). ( link to both Statutes here).
The prosecution had a lab report that stated there was a suspected 17 nanograms of THC and100 nanograms of Carboxy-THC.
Types of Charges
According to the information posted on the Michigan SOS site the following (current 3/20/21)
Operating While Visibly Impaired (OWVI) means that because of alcohol, controlled substance, or other intoxicating substance, you ability to operate a motor vehicle was visibly impaired.
Operating While Intoxicated (OWI) includes 3 types of violations:
Alcohol, drugs or other intoxicating substance in your body substantially affected your ability to operate a motor vehicle safely.
A bodily alcohol content (BAC) at or above 0.08. This level can be determined through a chemical test. High BAC means the alcohol level in your body was at or above 0.17. This level can be determined through a chemical test.
Operating With Any Presence of a Schedule 1 Drug or Cocaine (OWPD) means having even a small trace of these drugs in your body, even if you do not appear to be intoxicated or impaired. This can be determined through a chemical test.
Case Background
In March of 2019, the police were called to the scene of a single car accident. The vehicle, a 2004 Saturn Ion with apprehensive steering issues, had hit an electric utility pole that caused the neighbors to lose power. The car was totaled.
Upon initial contact with the Advanced Roadside Impaired Driving Enforcement (ARIDE) officer, my client explained the cause of the accident. The passenger tires of her vehicle got caught up in the gravel on the side of the road and she was pulled into the ditch. I lost control of the car and hit the pole.
Within 6 minutes of arriving at the scene the ARIDE officer claimed the vehicle and my client smelled of burnt marijuana. No marijuana was found at the scene.
The ARIDE Officer claimed our client’s pupils were dilated. There were initial concerns from the ARIDE officer with my client’s ability to perform the Standard Field Sobriety Tests (SFST) because of the accident.
Within 9 minutes of arriving at the scene, and prior to any examination by the EMS/ Paramedics, one of the EMS declared that she had been smoking doobies and classified it as dirt weed. “I think she reeks like doobies”. I think she’s smoking dirt weed but I think she’s high” were some statements by the EMS/Paramedic.
We could not wait to find out under oath how this EMS/Paramedic had the expert knowledge of recognizing “dirt weed”.
When the ARIDE Officer asked the victim of the accident (our client) if she was okay to do Standard Field Sobriety Tests (SFST), our client indicated she felt “Fuzzy” from the accident. The ARIDE Officer asked the EMS/Paramedic if he thought our client could perform the SFST. The EMS/Paramedic looked at the totaled vehicle and stated there is not that much damage to the vehicle and I don’t see why she couldn’t take the tests (despite never conducting an examination of our client.
The ARIDE officer then went into the ambulance where our client was seated and being examined by an EMT. The officer was told that he wasn’t done yet, but if he needed to talk to her – he could. The ARIDE officer then told my client she had been cleared to do SFST.
Fail and Arrest (Standard Operating Procedure)
The ARIDE officer then had my client perform SFST and claimed she failed because she was “under the influence of marijuana”. None of the SFST have ever been established to show impairment for marijuana or cannabis). The ARIDE Officer also failed miserably at following the proper protocols in administering the SFST test.
We were ready to address both of these issues on cross examination.
My client was subsequently arrested, consented to a blood draw, and was taken back to the jail. Upon arrival at the jail, she was then tested by the Drug Recognition Evaluator (DRE). That officer concluded my client was impaired by Central Nervous System Depressant CSN, contrary to the ARIDE officer.
We were additionally prepared and looking forward to addressing this issue on cross examination
Back to the Trial
Today… we picked a jury, and prior to the opening statements and some issues about discovery and brady violations, the state decided to Nolle Pros (dismiss all the driving charges) in exchange for a civil infraction plea of responsible… and of course a fine.
What Is a Brady Violation?
The Brady Rule, named after a 1963 case decided by the United States Supreme Court, governs discovery issues in criminal trials. Under its terms, the prosecution must turn over all exculpatory evidence to the defense; this is evidence that is favorable to the defendant and, therefore, might exonerate him, or impeach the credibility of a state witness. The evidence must be material to the case, meaning that if it were divulged prior to or during the trial, it would affect the verdict.
But what about the dirt weed?
Although this case is considered a victory. We still feel like we were shorted somewhat on finding out how the declaration of “Dirt Weed” lead in part to the arrest. We wanted to hear the explanation… we wanted to know how it was determined… that she was smoking “Dirt Weed”.
That moment never came because the allegations of the alleged crime were Nolle Pros.
A Strong Client is the Key to a Successful Outcome
Today… a victory for a client and another revealing look into the justice system.
I want to commend my client for having the courage to stand tall and fight for her rights. She is also did not give in to the unbearable stress and pressure she has had to endure the last 2 years.
Many people do not fight back, or challenge these types of allegations. Despite the seriousness of the accident, she had confidence in the case and our defense that an accident does not automatically equate to the crime of driving under the influence of marihuana. Because sometime an accident is just and accident.
Komorn Law PLLC
I want to thank the entire team at Komorn Law PLLC for the effort that was necessary to accomplish this outcome. Together we saved someone from a state manufactured conviction.
If you or someone you know needs an attorney who is equally driven to win as his clients. There’s just one name they need know… Attorney Michael Komorn of Komorn Law.
I also want to thank all the folks at Komorn Law PLLC for all their efforts in achieving this result. Attorney Alyssa McCormick, Attorney Allen Peisner, Attorney Jeff Frazier, Steve Miller, Jen St. Amant. It was truly a team effort.
I also want to thank Attorneys David Rudoi and Bernie Joucuns for their efforts in assisting in prepping for trial.
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.
Komorn Law is proud to report a significant and relevant case victory directly related to our recent Michigan Court of Appeals Opinion win in the People v. Thue case where as a registered medical marijuana patient cannot be penalized for consuming medical marihuana while on probation.
The Client Issue
Our client was charged with violating his probation for allegedly testing positive for “Marihuana” on 2 occasions. The allegations were based upon a urine test which both indicated the metabolite of Delta-9 THC, Carboxy -11/ COOH-11.
Our client was certified as a medical marihuana patient after the date of the first alleged violation but before the second alleged violation. We had filed several motions, including but not limited to, a “Motion to allow for the Medical Use of Marihauana While on Probation”.
A probation violation hearing began on January 14, 2021, whereby testimony was taken, from the probation officer, and our expert.
Our position and the evidence we presented established that the urine samples indicating the metabolite Carboxy-11 COOH-11, were from a lawful source. The matter was adjourned, mid hearing.
Return to Court
On February 22, 2021 – when we appeared before the court again in person, we were happy to hear the court had read and reviewed the People v,.Thue case, commented on our involvement, and was prepared to rule on the allegations regarding the 2 positive urine tests.
Because of the People v,Thue case our previous position regarding “lawful THC” became moot.
In summary the court found that because of the current valid medical marihuana patient status of my client, he could not be revoked from probation, for either violation. That is to say, that the allegation of his use prior to becoming a registered medical marihuana patient (and the allegation after he became a certified patient) were dismissed.
“Counsel, that is my interpretation of the case” the Court said. To which I replied, I agree that is the correct interpretation.
The Court dismissed both of the violation, and amended the sentencing order to allow for the medical use of cannabis while on bond.
Huge shout out to our client for his courage in wanting to assert his rights and challenge the allegations, the legal defense team at Komorn Law PLLC, and Dr. Land for his expertise in science and assistance in presenting our case.
(1) A person shall not carry a dagger, dirk, stiletto, a double-edged nonfolding stabbing instrument of any length, or any other dangerous weapon, except a hunting knife adapted and carried as such, concealed on or about his or her person, or whether concealed or otherwise in any vehicle operated or occupied by the person, except in his or her dwelling house, place of business or on other land possessed by the person.
(2) A person shall not carry a pistol concealed on or about his or her person, or, whether concealed or otherwise, in a vehicle operated or occupied by the person, except in his or her dwelling house, place of business, or on other land possessed by the person, without a license to carry the pistol as provided by law and if licensed, shall not carry the pistol in a place or manner inconsistent with any restrictions upon such license.
(3) A person who violates this section is guilty of a felony, punishable by imprisonment for not more than 5 years, or by a fine of not more than $2,500.00.
Case Victory
Komorn Law PLLC, is proud to announce another victory and rare outcome in the broken criminal justice system.
Case Background
The allegations in this matter, arose out of a traffic stop by the Sherriff’s Department. It was not a surprise that the case had several issues related to the stop, arrest and seizure of both the accused and the evidence intended to be used at trial.
After raising these issues, and being prepared to proceed with a hearing to address these issues, the state capitulated – or – said another way, they made an offer that we couldn’t refuse.
Important Legal Lesson For Gun Owners
This case represents an important legal lesson for second amendment possessors and advocates.
If you possess a firearm and while transporting it in your vehicle are involved in a traffic stop by the police. You can be assured that the manner or method of that transport will be heavily scrutinized (see below for Michigan firearm transport in vehicle laws).
My client had expressed to me his top priorities for the outcome of this matter, and on that list was his right to preserve his right to possess and own a firearm ( in addition to avoidance of a felony conviction, jail, or similar encumbrances) .
This was based upon concerns for safety at or upon his residence.
The final result and outcome in this matter allowed him to achieve this goal and move on with his life without affecting his future while retaining all of his fundamental rights.
Case Outcome
Client was charged with 5 year felony-Carrying a Concealed Weapon. Client resolved matter by pleading to a reduced charge of an unregistered vehicle and sentenced to a fine. Any and all second amendment rights, including ccw / pistol permit retained and unaffected by this disposition.
Mission Accomplished!
Tap the number for an Attorney to fight for your freedom and your life > 248-357-2550 – Komorn Law
GUN LAWS in MICHIGAN
As with any law or anything you find on the internet, before you act, one should get their information directly from a government website and/or consult an attorney.
Michigan’s Gun Laws
Licenses are issued at the local level by county clerks. A permit to purchase, a background check and firearms registration are required to buy a handgun from a private individual.
Open carry is legal in Michigan with several restrictions. Open carry is allowed in more places than concealed carry as the restricted areas which can be found in MCL 28.425o apply to concealed carry.
28.425o Premises on which carrying concealed weapon or portable device that uses electro-muscular disruption technology prohibited; “premises” defined; exceptions to subsections (1) and (2); violation; penalties.
Concealed carry is legal in Michigan with a Concealed Pistol License (CPL) and for individuals at least 21 years old who have CCW licenses/permits issued with successful completion of a firearms training.
A Concealed Pistol License (CPL) is issued to residents only, with exceptions for active duty military stationed in Michigan as well as active duty military stationed outside of Michigan.
Each state in the USA has reciprocity laws. Michigan currently recognizes resident permits from all states, the District of Columbia and Puerto Rico (Note: Before traveling check each states laws for any changes or updates from an official state website).
Michigan is a Castle Doctrine(see Self Defense Act 780.972 below) state. A person may use deadly force, with no duty to retreat, if the individual has an honest and reasonable belief that such force is necessary to prevent the imminent death, great bodily harm or sexual assault to that person or to another individual. Any person who uses a gun legitimately in self-defense has immunity from civil liability.
The Law for a Common Question About Transporting a Firearmin Michigan
Transporting or possessing firearm in or upon motor vehicle
750.227d Transporting or possessing firearm in or upon motor vehicle or self-propelled vehicle designed for land travel; violation as misdemeanor; penalty.
Sec. 227d.
(1) Except as otherwise permitted by law, a person shall not transport or possess in or upon a motor vehicle or any self-propelled vehicle designed for land travel either of the following:
(a) A firearm, other than a pistol, unless the firearm is unloaded and is 1 or more of the following:
(i) Taken down.
(ii) Enclosed in a case.
(iii) Carried in the trunk of the vehicle.
(iv) Inaccessible from the interior of the vehicle.
(b) A pneumatic gun that expels a metallic BB or metallic pellet greater than .177 caliber unless the pneumatic gun is unloaded and is 1 or more of the following:
(i) Taken down.
(ii) Enclosed in a case.
(iii) Carried in the trunk of the vehicle.
(iv) Inaccessible from the interior of the vehicle.
(2) A person who violates this section is guilty of a misdemeanor punishable by imprisonment for not more than 90 days or a fine of not more than $100.00, or both.
Portable device or weapon directing electrical current, impulse, wave, or beam; sale or possession prohibited; exceptions; use of electro-muscular disruption technology; violation; penalty; verification of identity and possession of license; prohibited use; definitions.
Short-barreled shotgun or rifle; making, manufacturing, transferring, or possessing as felony; penalty; exceptions; short-barreled shotgun or rifle 26 inches or less; short-barreled shotgun or rifle greater than 26 inches; violation of subsection (5) as civil infraction; seizure and forfeiture; applicability of MCL 776.20 to subsection (3).
Armor piercing ammunition; manufacture, distribution, sale, or use prohibited; exceptions; violation as felony; penalty; definitions; exemption of projectile or projectile core; rule.
Possession of firearm or distribution of ammunition by person convicted of felony; circumstances; penalty; applicability of section to expunged or set aside conviction; definitions.
Carrying or possessing firearm when committing or attempting to commit felony; carrying or possessing pneumatic gun; exception; “law enforcement officer” defined.
Committing or attempting to commit crime involving violent act or threat of violent act against another person while wearing body armor as felony; penalty; consecutive term of imprisonment; exception; definitions.
“Aircraft,” “approved signaling device,” and “vessel” defined; sections inapplicable to approved signaling device; sale, purchase, possession, or use of approved signaling device; violation as misdemeanor; penalties.
Obtaining pistol in violation of MCL 28.422; intentionally making material false statement on application for license to purchase pistol; using or attempting to use false identification or identification of another person to purchase firearm; penalties.
Intentionally discharging firearm from motor vehicle, snowmobile, or off-road vehicle as crime; penalty; exceptions; other violation; consecutive terms; self-defense; “peace officer” defined.
Intentionally discharging firearm at dwelling or potentially occupied structure as felony; penalty; exceptions; other violation; consecutive terms; definitions.
Threatening to commit violence with firearm, explosive, or other dangerous weapon against students or employees on school property; specific intent or overt act; violation arising out of same transaction; definitions.
Disposition of seized weapon; immunity from civil liability; “law enforcement agency” defined.
Act 372 of 1927
AN ACT to regulate and license the selling, purchasing, possessing, and carrying of certain firearms, gas ejecting devices, and electro-muscular disruption devices; to prohibit the buying, selling, or carrying of certain firearms, gas ejecting devices, and electro-muscular disruption devices without a license or other authorization; to provide for the forfeiture of firearms and electro-muscular disruption devices under certain circumstances; to provide for penalties and remedies; to provide immunity from civil liability under certain circumstances; to prescribe the powers and duties of certain state and local agencies; to prohibit certain conduct against individuals who apply for or receive a license to carry a concealed pistol; to make appropriations; to prescribe certain conditions for the appropriations; and to repeal all acts and parts of acts inconsistent with this act.
History: 1927, Act 372, Eff. Sept. 5, 1927 ;– Am. 1929, Act 206, Imd. Eff. May 20, 1929 ;– Am. 1931, Act 333, Imd. Eff. June 16, 1931 ;– Am. 1980, Act 345, Eff. Mar. 31, 1981 ;– Am. 1990, Act 320, Eff. Mar. 28, 1991 ;– Am. 2000, Act 265, Imd. Eff. June 29, 2000 ;– Am. 2000, Act 381, Eff. July 1, 2001 ;– Am. 2012, Act 123, Eff. Aug. 6, 2012 Popular Name: CCW Popular Name: Concealed Weapons Popular Name: CPL Popular Name: Right to Carry Popular Name: Shall Issue
Definitions; lawful owning, possessing, carrying, or transporting of pistol greater than 26 inches in length; conditions; firearm not considered as pistol; election.
License to purchase, carry, possess, or transport pistol; issuance; qualifications; applications; sale of pistol; exemptions; transfer of ownership to heir or devisee; nonresident; active duty status; forging application as felony; implementation during business hours.
Individuals not required to obtain license; completion of record by seller; duties of purchaser; noncompliance as state civil infraction; penalty; entering information into pistol entry database; obtaining copy of information; exemption; material false statement as felony; penalty; rules; verification; definitions.
Entry of order or disposition into law enforcement information network; written notice; person subject of order; request to amend inaccuracy; notice of grant or denial of request; hearing; entry of personal protection order; service required.
Validity and duration of concealed pistol license issued before December 1, 2015; duties of county clerk; verification by state police; applicant issued personal protection order; emergency license; requirements; notice of statutory disqualification; surrender of emergency license; compilation of firearms laws by legislative service bureau; distribution; statement.
License application; form; contents; material false statement as felony; record; fee; verification of requirements; determination; circumstances for issuance; information of court order or conviction; fingerprints; issuance or denial; individual moving to different county; replacement license; suspension or revocation of license; furnishing copy of application to individual; list of certified instructors; delivery of license by first-class mail; liability for civil damages; voluntary surrender of license; definitions.
Concealed pistol license; possession; disclosure to peace officer; violation; fine; notice to department; suspension or revocation by county clerk; entry into law enforcement information network; seizure by peace officer; forfeiture; “peace officer” defined.
Acceptance of license as implied consent to submit to chemical analysis of breath, blood, or urine; collection and testing; refusal to take chemical test; definitions.
Premises on which carrying concealed weapon or portable device that uses electro-muscular disruption technology prohibited; “premises” defined; exceptions to subsections (1) and (2); violation; penalties.
Suspension, revocation, or reinstatement of license; notice; surrender of license; order or amended order; entry into law enforcement information network; effect of suspension or revocation order; failure to receive notice.
Sale of firearms by federally licensed firearms dealer; sale of trigger lock or secured container; exceptions; brochure or pamphlet; statement of compliance; notice of liability; action by political subdivision against firearm or ammunition producer prohibited; rights of state attorney general; exceptions; effect of subsections (9) through (11); violation; penalties; definitions.
750.246 Mutilation.
Sec. 246.
Mutilation of flag, etc.—Any person who shall publicly mutilate, deface, defile, defy, trample upon or by word or act cast contempt upon any such flag, standard, color, ensign, coat-of-arms or shield, is guilty of a misdemeanor.
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.
Defense attorneys for two of three men charged with manslaughter after a killing in Warren say the case should be dismissed after the Macomb County medical examiner took the rare action to remove homicide as the manner of death.
Medical Examiner Dr. Daniel Spitz initially ruled the death of Kenneth “Kenny” Klingler, 24, of Auburn Hills, as caused by another person.
Watching The Video
After viewing related video of the incident Spitz changed the manner of death in January to “indeterminate.” Video shows Klinger could have been run over by one vehicle, and possibly as many as three, as he laid on Mound Road in Warren.
Attorney Michael Komorn, representing co-defendant Chris Twarowski, agreed charges should be dropped and blamed prosecutors and Warren police officials for initially presenting a “false narrative” of the incident to the public and Klingler’s family.
“It’s a huge disservice to the victim’s family by suggesting this false narrative, that they beat him and left him to die,” he said.
Three men remain charged with involuntary manslaughter, punishable by up to 15 years in prison.
“I’m very pleased Dr. Spitz was willing to take a second look at this … and had an honest change of mind,” said Robbie Lang, attorney for defendant Christopher Zehnpfennig. But, “I am just shocked why this case continues and has not been dismissed.”
It’s been unfair to the defendants as they all have had trouble getting jobs while the charges are pending, the attorneys said.
Zehnpfennig and Twarowski, both 23 at the time of the incident, reside in Warren. Their co-defendant is Nathan Thomas Domagalski, 25 at the time, of Hazel Park. The trio’s preliminary examination scheduled for last Friday in 37th District Court in Warren was adjourned after Spitz’s amended report was disclosed.
A new date was set for March 25, 2020.
Read the back story and a lot More Here in the Oakland Press
If you have a case that needs one of the top criminal defense attorney’s in Michigan to help defend your freedom and future. Call Komorn Law 248-357-2550 or visit KomornLaw.com to learn more.
As it goes, my clients were overcharged with crimes involving drugs, guns, bombs and money. We litigated this case for over three years including 5 days of preliminary exam testimony, and several motions litigated at the District Court and the Circuit Court.
We had made several appearances in circuit court in our continued effort to challenge the governments search and seizure of evidence because of the illegal “Knock and Talk”
Knock and Talk
When the police don’t have enough evidence to get a search warrant, they sometimes employ a procedure they have nicknamed “knock and talk” to investigate further.
Courts have ruled that a police officer has the same right as an everyday citizen (for example, a Girl Scout selling cookies) to visit your house, knock on your front door, and ask to speak with you.
Unfortunately, abuses of the “knock and talk” technique are now rampant.
Two Cases
Two somewhat recent cases in Michigan have helped clarify the law in this area.
In one case, from 2015, when no one answered the front door, the police started walking around the property knocking on back doors and side doors until they spotted some marijuana through a window in the back of the house.
The instinctual fourth amendment argument is that the police need a warrant before they roam around your back-yard peering into your windows.
In July 2016, however, the Supreme Court dismissed the appeal without deciding the issue.
People v. Radandt
That same month a similar case before the Michigan Supreme Court, was heard, arguing that a so-called “knock and talk” violates the Fourth Amendment when it is conducted in the middle of the night.
In June 2017 the Michigan Supreme Court agreed with this argument and held that the police were trespassing, and therefore violating the Fourth Amendment, when they woke up suspects and their families in the middle of the night to interrogate them in their homes. People v. Frederick; People v. Van Doorne;
In People v Frederick, 500 Mich 228, 895 NW2d 541 (2017), the supreme court considered the scope of the implied license a homeowner extends to the general public in People v Frederick, 500 Mich 228, 895 NW2d 541 (2017).
The police had visited defendants’ homes during the early morning hours (4:00 and 5:30 a.m.) and knocked on the door. After conversations during which both defendants consented to searches of their homes, the police searched the homes and recovered marijuana products.
The court concluded that the procedure was not a permissible “knock and talk,” which is permitted because the public, and the police, have an implied license to approach the door, knock and wait briefly to be received, and then, if not invited to stay longer, leave.
The court reasoned that the scope of the implied license is time sensitive and that generally there is no implied license to knock at someone’s door in the middle of the night.
In exceeding the scope of the implied license, the police were trespassing. The trespass, coupled with information gathering (the police were seeking to find something or gain information), constituted a search under the Fourth Amendment, and because the police did not have warrants and no exception to the warrant requirement existed, the approaches violated the Fourth Amendment.
The court further held that defendants’ consent, even if voluntary, was invalid unless it was sufficiently attenuated from the warrantless search. A court considers the following factors in making that determination: (1) the temporal proximity of the illegal act and the alleged consent, (2) the presence of intervening circumstances, and (3) the purpose and flagrancy of the official misconduct. The court remanded the case for a weighing of those factors by the trial court.
Back to the Case at Hand
The facts of this case were very similar to the Fredericks case.
Here several officers ( some in uniform, some in raid gear and none of them in girl scout uniforms), in several different vehicles, (some marked some unmarked), encroached and trespassed upon my clients property, came into the back yard and insisted that FANG had the authority to do a compliance check of their medical marihuana grow.
We took issue with the coming into the back yard, because it was a trespass. We also took issue with the concept that a multi-jurisdictional task force has the authority to do a compliance check for MMMA behavior, or would be able to determine compliance if they did have the authority and by asserting the authority ( that they did not have), directly impacted the volition of the alleged consent to search.
MCL 333.26426 (g) Possession of, or application for, a registry identification card shall not constitute probable cause or reasonable suspicion, nor shall it be used to support the search of the person or property of the person possessing or applying for the registry identification card, or otherwise subject the person or property of the person to inspection by any local, county or state governmental agency.
The evidentiary hearings had been very contentious, and it may be fair to say that the investigators and officers in this matter did not like my suggestions that they had trampled all over my clients 4th amendment rights.
Status Quo: Overcharged
The original overcharging of by the prosecutor’s office is a common practice.
Anytime allegations involve the combination of narcotics and firearms (even if licensed, registered, CCW or CPL) Prosecutors love to charge felony firearm. Felony firearm mandates a 2 years term of imprisonment in the Michigan Department of Corrections to run consecutive to any other sentence.
The jury instruction is complicated, and sometimes a compromised jury will think it is doing a favor for the accused and find him or her not guilty of the underlying felony and guilty of the felony firearm only. This is illogical in any legal analysis but does not matter and will still result in a mandatory 2 years in prison.
Bomb Making Charge – Because It Exploded
One of the more outrageous and memorable examples of prosecutors overcharging, and incidentally was one of the counts dismissed at the exam, was for the crime of bomb making.
This count was literally created by the police after seizing legal fireworks, ( what are commonly known as M80’s- flash powder) then testing the fireworks (they blew off some fireworks) and then created a report that concluded that the fireworks were bombs because they created an explosion.
As I said this count was dismissed at the exam, but this bomb making count is just another example of the awesome power that the prosecutors have. They are literally the “Kings of the Court Room.”
Kings of the Courtroom
The Kings of the Courtroom (and Queens) run their kingdom like a well-oiled machine. They have the awesome power to charge any crime they want.
It is only the Prosecutors who can add to the charges, amend the charges, increase or decrease the charges or dismiss the charges. And of course, they have absolute immunity from civil liability while doing it.
This is the reason that 95-97 percent of people charged with crimes plead guilty.
“A study by Northwestern University Law School’s Centre on Wrongful Convictions found that 46% of documented wrongful capital convictions between 1973 and 2004 could be traced to false testimony by snitches—making them the leading cause of wrongful convictions in death-penalty cases.
The Innocence Project keeps a database of Americans convicted of serious crimes but then exonerated by DNA evidence. Of the 318 it lists, 57 involved informants—and 30 of the convicted had entered a guilty plea.”
“The prosecutor has more control over life, liberty and reputation than any other person in America,” said Robert Jackson, the attorney-general, in 1940. American prosecutors are more powerful than ever before.
The Pressure to Plead Guilty
Several legal changes have empowered them. The first is the explosion of plea bargaining, where a suspect agrees to plead guilty to a lesser charge if the more serious charges against them are dropped.
Plea bargains were unobtainable in the early years of American justice. But today more than 95% of cases end in such deals and thus are never brought to trial.”
“Jed Rakoff, a district judge in New York, thinks it unlikely that 95% of defendants are guilty. Of the 2.4m Americans behind bars, he thinks it possible that “thousands, perhaps tens of thousands” confessed despite being innocent. One reason they might do so is because harsh, mandatory-minimum sentencing rules can make such a choice rational. Rather than risk a trial and a 30-year sentence, some cop a plea and accept a much shorter one.”
Battle Weary: Back to the Case at Hand
As it goes, and only because of our hard work, my client’s will, desire and commitment to this battle, today we were finally rewarded.
Clients were beyond joyful for the results today, but even with that said, it is hard to really understand, unless you live through it, just how overwhelming the State can be when they want.
All charges were dismissed as to one of the accused, and a plea to a few benign misdemeanors, with immediate sentencing to fines for the other. Case over.
It was a long hard battle and one that we were prepared to continue. The motivation to resolve as we did today, was primarily because the allegations in this case had a lot of potential liability. which was one of the motivations to resolve the case as we did.
