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.
Michael Komorn AVVO Awards and Reviews AVVO Reviews Source: AVVO Ratings 5.0 stars Posted by J | December 29, 2023 | Hired Attorney J RHands down the best experience I’ve had with an attorney! Took care of the issue within two weeks and had it handled without me...
WASHINGTON — Siding with a small-time drug offender in Indiana whose $42,000 Land Rover was seized by law enforcement officials, the Supreme Court on Wednesday ruled that the Constitution places limits on civil forfeiture laws that allow states and localities to take and keep private property used to commit crimes.
Civil forfeiture is a popular way to raise revenue, and its use has been the subject of widespread criticism across the political spectrum.
The SCOTUS has ruled that the Eighth Amendment, which bars “excessive fines,” limits the ability of the federal government to seize property. On Wednesday, the court ruled that the clause also applies to the states.
Previously, the Supreme Court had not really addressed that question. It had addressed the status of the Excessive Fines Clause, but only in the context of the federal government.
The court had, however, previously ruled that most protections under the Bill of Rights apply to the states — or were incorporated against them, in the legal jargon — under the 14th Amendment.
Justice Ruth Bader Ginsburg, writing for eight justices, said the question was an easy one. “The historical and logical case for concluding that the 14th Amendment incorporates the Excessive Fines Clause is overwhelming,” she wrote.
“For good reason, the protection against excessive fines has been a constant shield throughout Anglo-American history: Exorbitant tolls undermine other constitutional liberties,” she wrote. “Excessive fines can be used, for example, to retaliate against or chill the speech of political enemies.”
The Police may legally lie, bluff, mislead and intimidate you.
Most “avoidable arrests” occur from trickery and intimidation and failing to understand your rights and when to assert them.
The Police Encounter will escalate negatively if and when the person:
Makes an admission of guilt
Consents to a search.
Offer information that is unresponsive to the questions asked. Refusing to answer questions is not an admission of guilt
Asserting your right to remain silent is not an admission of guilt
Demanding to have your lawyer present during any questioning is not an admission of guilt
Refusing a search is not an admission of guilt.
Officers must have a reasons to detain you, if they do not, you are free to leave.
If you are free to leave, and not being detained, what you say can and will be used against you.
Miranda Rights are required to be read only if you are in “police custody” and you are being interrogated.
Miranda warnings are not required to be read to you when you are arrested. If you are in police custody and you are not Mirandized, and you begin to talk or discuss something, and you have not been Mirandized, the statements can and will be used against you.
If you are in custody… the police have no obligation to Mirandize you.
Miranda Warnings are not required when the police are merely investigating, and the requirement of Miranda only applies after the police have arrested you, seized your person and specifically have begun to interrogate you, and or illicit information about the investigation or the alleged crime that has resulted in your arrest or custody.
One of the Operative facts for 4th Amendment issues is the Seizure, arrest or detention of the person.
The Police are not your friends and their job is to enforce the law, in doing so they have been trained in citizen encounters so be aware of the Common Police tricks and tools used during citizen encounters.
Be aware of Phrasing:
“Have you had anything to drink tonight?” Best response: is NO
Where are you coming from?It is best to have this answer pre-prepared so as to not raise suspicion.
You can answer the Officers questions by stating “Respectfully officer, I don’t have to answer that.”
“Not answering is suspicious, why are you not answering my question, clearly you are doing something wrong?”Best Answer: “Officer, respectfully I am aware of my rights, and constitutional protections, and I know I have no legal obligation to answer your questions.
“Not answering is resisting me in this investigation” Best Answer: “I’m not resisting, respectfully, I don’t have to answer anything.”
“If you have nothing to hide, you don’t mind if I look around.” Best response: “I’m sorry Officer, but I don’t consent to searches.”
“If you refuse a search, I’ll have to call a K-9 unit.” Best response: “Officer, are you detaining me, or am I free to go?”
Officers cannot detain you past the purpose of the traffic stop and detaining you beyond this purpose is constitutionally illegal. Specifically officers cannot detain you beyond the traffic stop for the purpose of calling for a k-9 unit or drug sniffing dog.
Remember
Refusing to answer questions is not an admission of guilt
Asserting your right to remain silent is not an admission of guilt
Demanding to have your lawyer present during any questioning is not an admission of guilt
If you or someone you know has been accused of a crime or DUI. Call Komorn Law for one of the most referred attorneys in Michigan for legal defense. Call Now 248-357-2550
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Pontiac— A mistrial was declared in the case of an accused Rochester Hills drug dealer this month after it was disclosed his defense attorney never received pretrial information about a mobile tracking device placed on his client’s vehicle by investigators.
Christopher Khalil Dukes, 34, is charged in Oakland Circuit Court with possession with intent to deliver 450 to 1,000 grams of heroin, a felony that carries a 30-year prison sentence. He remains free on $150,000 bond pending a retrial set for June 19.
But still in dispute — and possibly to be addressed at a pretrial hearing Tuesday — is whether the tracker that monitored his movements was legally attached to Dukes’ 2015 Cadillac. Officials have been unable to locate the original search warrant reportedly obtained from a Pontiac district judge by Detective Charles Janczarek, a member of the Oakland County Narcotics Enforcement Team.
Defense attorneys and civil right advocates said the case underscores concerns about the potential for abuse of GPS trackers by law enforcement and the need for proper search warrants.
Dukes’ attorney, James W. Amberg, said if authorities can’t prove the Cadillac was legally tracked, it would impact a subsequent search warrant for Dukes’ Rochester Hills apartment, where NET investigators arrested him in August 2015 and seized a kilogram of heroin, drug packaging materials, cash and guns. (Photo: Daniel Mears / The Detroit News)
Dukes’ attorney, James W. Amberg, said if authorities can’t prove the Cadillac was legally tracked, it would impact a subsequent search warrant for Dukes’ Rochester Hills apartment, where NET investigators arrested him in August 2015 and seized a kilogram of heroin, drug packaging materials, cash and guns.
“The apartment warrant was obtained based on information that the tracking device had established suspected drug sales activity,” Amberg told Oakland Circuit Judge Rae Lee Chabot at a March 8 hearing after Janczarek disclosed under cross-examination that a mobile tracker and a telephone tracking app had been used to monitor Dukes’ movements.
“If that information was false, then the second warrant was improper and the argument can be made that it has to be thrown out, along with any evidence obtained with it,” Amberg said.
At the hearing, assistant prosecutor Shannon O’Brien said efforts would be made to find the elusive warrant but it “may be just a miscommunication on a document in a very long-term case.”
Amberg told Chabot he did not think the warrant existed: “If this happened in federal court, the ax would come down hard,” he said.
“This may be the most serious issue I have ever encountered during a trial,” Chabot said as she granted Amberg’s request for a mistrial.
Pros and cons of trackers
Trackers are commonly used on vehicles suspected in criminal activity, but police must first obtain a search warrant from a magistrate or judge, just as they do to search a home or office. Officers swear on an affidavit why the tracking device is needed, supported by information about active or past criminal investigations, informant and witness statements, and other evidence.
The affidavit request in the Dukes case — which includes the above elements — has been found, but not the warrant itself.
Paul Walton, Oakland County’s chief deputy prosecutor, said NET officers “are checking 50th District Court files to locate the missing search warrant.”
“We expect they will be able to locate it,” Walton said. “That court handles a lot of paperwork, and it is possible that it was mislaid.”
Oakland County Undersheriff Michael McCabe said Judge Ronda Fowlkes Gross of 50th District Court approved using the vehicle tracker. “This is a paperwork snafu of some sort. We have the affidavit signed by Judge Gross authorizing the tracking device, which is signed at the same time as the warrant.”
McCabe said investigators personally surveilled Dukes for 30 days before seeking a warrant for the GPS device.
“The only thing that is missing is the first page, the actual warrant,” McCabe said. “We don’t know if it was misplaced or lost or what happened to it. But we are 100 percent confident that we had a valid warrant and that this is a solid case and we expect a conviction.”
Legal experts and others who follow such cases say tracking devices are powerful tools for catching criminals but that safeguards are needed to protect suspects’ rights and ensure that warrant requests are accurate and accessible.
David Moran, a University of Michigan law professor, said the U.S. Supreme Court has ruled that police must obtain a search warrant to use tracking devices or risk violating the 4th Amendment’s prohibition against unreasonable search and seizure. He questioned why the warrant authorizing the search of Dukes’ home included no mention of the tracking device.
“It surprises me if they didn’t note that (tracking device was used) in the subsequent warrant to search the apartment,” said Moran. “It smells bad.”
“It doesn’t sound right,” said Nathan Wessler, an ACLU attorney in New York who specializes in technology used in searches. “You have to have a warrant to put a tracking device on a vehicle. We’ve known that since 2012.”
Problems with warrants have led to other Oakland County cases being dismissed.
Last month, Circuit Judge Denise Langford Morris dismissed a marijuana dispensary case, finding there had not been probable cause to search warehouses in Waterford and Lake Orion in February 2016, though NET officers had obtained warrants signed by judges; the Oakland County Prosecutor’s Office is appealing Morris’ ruling.
In 2013, an NET officer, Sgt. Marc Ferguson, was fired for lying two years earlier to obtain a warrant to search a Pontiac shipping company where he had already opened a package of 78 pounds of marijuana. The incident led prosecutors to seek the dismissal of 17 cases in which Ferguson was a chief witness, including the charges against the recipient of the marijuana, Anastacio Payan of California.
“In 26 years, I’ve never seen a search warrant denied,” said Payan’s attorney, James L. Galen Jr. “Sometimes I think this is all about forfeitures and going after property rather than criminals.”
Walton said an assistant prosecutor brought the Payan incident to light after a witness told her what Ferguson had done.
Informants and surveillance
On Aug. 18, 2015, Janczarek waited for Dukes to arrive at an apartment on Waterford Court in the gated River Oaks complex. After Dukes parked in the apartment’s carport, Janczarek produced a warrant to search the home.
According to a warrant return and court testimony, NET officers didn’t have to go far. Concealed in the bottom of a black soft cooler in the foyer was a “brick” of heroin weighing 878 grams. Six “corner ties” containing 61.8 grams also were found.
The drugs, depending on how they were cut with other materials, had a street value of $95,000 to $300,000, according to the sheriff’s office.
A bedroom closet had a pair of jeans containing $400; a pair of cargo pants containing $6,000 and a second pair of cargo pants containing $16,000. A .45-caliber Smith & Wesson handgun and ammunition were found on a stack of clothes. A .9-mm Walther was found in the glovebox of Dukes’ Cadillac.
Dukes is licensed and has a permit to carry a concealed handgun, court records state.
In Janczarek’s affidavit, he said a “credible and reliable” informant told him Dukes was distributing cocaine countywide, using his Cadillac. Janczarek also noted a police database showed Bloomfield Township police had arrested Dukes for possession with intent to deliver marijuana and felony firearm.
Amberg pointed out in court filings that Janczarek incorrectly reported in his August 2015 warrant request to search Dukes’ apartment that the Bloomfield arrest occurred in November 2015 — which would have put it three months in the future, a mistake overlooked by the prosecutor’s office and the judge.
Rather, the Bloomfield arrest occurred in January 2007 and the case was dismissed in 2008.
After learning in court about the tracker on his client’s car, Amberg said Janczarek’s credibility and the “integrity” of the informant were under question because of a similar October 2015 case. In that instance, Janczarek obtained a search warrant on a drug suspect, Demario Williamson, after making an inaccurate statement to a different judge that an informant’s help had led to an earlier search warrant.
According to the court record, there was no other search warrant connected to the informant in the case against Williamson, who was charged with possession of 50 to 449 grams of cocaine.
Assistant prosecutor Beth Hand brought the concern over Janczarek’s statement to Judge Leo Bowman, who found the officer had made an “honest mistake” and hadn’t tried to mislead the court.
Williamson’s attorney, Paul J. Stablein, unsuccessfully argued since the warrant contained a false statement, any evidence it led to should have been barred at trial. Williamson, who was found guilty and given 20 to 60 years in prison, is appealing his sentence.
