USSC Holds during Traffic Stops Police can’t detain suspects to wait for K-9 drug sniffing dog.
Search and Seizure, K-9, Dog sniffing, unreasonable searches and seizures. 4th amendment rubber meets the road
The Supreme Court ruled 6-3 on Tuesday April 21, 2015 that the Constitution forbids police from holding a suspect without probable cause, even for fewer than 10 extra minutes.
Writing on behalf of the court, Justice Ruth Bader Ginsburg declared that the constitutional protections against unreasonable search and seizure prevent police from extending an otherwise completed traffic stop to allow for a drug-sniffing dog to arrive.
“We hold that a police stop exceeding the time needed to handle the matter for which the stop was made violates the Constitution’s shield against unreasonable seizures.”
The Rodriguez case is important in the ongoing line being drawn between citizens living in a democracy based upon freedom and the governments interest of protecting the safety and well being of the public. All too often we get calls involving police encounters during a traffic stop. Traffic stops in certain situations can and will lead to searches of vehicles,
depending on many factors. Prior to the Rodriguez case, the bright line rule had been that the traffic stop may extend only as long as it was necessary for the reason for the traffic stop to be completed ( writing a ticket, giving a warning etc..). The purpose of a traffic stop is not and should never be to investigate a person unless there is some suspicion of a crime afoot. Sometime in traffic situation, and because drivers are unaware of their legal obligation during a traffic stop, often times the police can and will take advantage of these
situations, detain the driver longer than they need to be detain, and utilize that time to try to find probable cause of some crime.
Rodriguez v the United States puts an end to that type of police work. After the traffic stop had been complete with Rodriguez, the Nebraska Trooper asked if he could walk his drug sniffing, k-9 around the vehicle. To his credit, Rodriguez stated no, the trooper nonetheless searched the exterior of the vehicle for 7-8 minutes while awaiting back up to arrive. Adter the k-9 allegedly hit on the vehicle, a search of the vehicle revealed large quantities of methamphetamine, and Rodriguez was arrested and charged.
It is important to note that the entirety of the traffic stop lasted less than 30 minutes.
In suppressing all the evidence (the methamphetamine) that was a result of the traffic stop and search of the vehicle, the United States Supreme Court found that search of Rodriguez’s car was illegal, and the evidence gathered in it should not be used at trial.
While officers may use a dog to sniff around a car during the course of a routine traffic stop, they cannot extend the length of the stop in order to carry it out.
“[T]he tolerable duration of police inquiries in the traffic-stop context is determined by the seizure’s ‘mission’ — to address the traffic violation that warranted the stop,” Ginsburg ruled. “Authority for the seizure thus ends when tasks tied to the traffic infraction are — or reasonably should have been — completed.”
In its dissenting opinion Justices Clarence Thomas (writing for the dissent), Samuel Alito and Anthony Kennedy disagreed with the ruling, taunting the majority opinion by stating “Had Officer Struble arrested, handcuffed, and taken Rodriguez to the police station for his traffic violation, he would have complied with the Fourth Amendment. “But because he made Rodriguez wait for seven or eight extra minutes until a dog arrived, he evidently committed a constitutional violation. Such a view of the Fourth Amendment makes little sense.” Justice Thomas argued the majorities ruling makes meaningless the legal difference between “reasonable suspicion”- which does not authorize a search of someone’s property and “probable cause” which does and arguing that police can reasonably detain people to investigate other possible violations of the law. 13-9972_p8k0
Issue: Whether an employee who possesses a registration identification card under the Michigan Medical Marihuana Act (MMMA) is disqualified from receiving unemployment benefits under the Michigan Employment Security Act (MESA) after the
employee has been terminated for failing to pass a drug test?
Holding: NO
The Court held that “because there was no evidence to suggest that the positive drug tests were caused by anything other than claimants’ use of medical marijuana in accordance with the terms of the MMMA, the denial of the benefits constituted an
improper penalty for the medical use of marijuana under the MMMA, MCL 333.26424(a).
Holding: NO, the court held that the MMMA provides a potential defense to criminal prosecution or other adverse action by the state, not private employment disputes.
Yes, the court held that the Commerce Clause gives Congress the authority to prohibit the local cultivation and use of Marihuana contrary to state law.
Issue: Whether an amendment to the City of Grand Rapids’ Charter concerning the possession, control, and giving away of marihuana is valid?
Holding: The Court held that “The voters of Grand Rapids had the power to amend the City Charter and plaintiff has failed to show that any section of the charter amendment necessarily conflicts with state law.” The Court reasoned that “The charter amendment merely creates a civil infraction in the City and directs the City’s police resources away from some of these laws.”
The Michigan Attorney General opined that the Michigan Medical Marihuana Act,Initiated Law 1 of 2008, MCL 333.26421 et seq, does not prohibit the Department of Community Health from entering into an agreement or contract with an outside vendor to
assist the department in processing applications, eligibility determinations, and the issuance of identification cards to patients and caregivers, if the Department of Community Health retains its authority to approve or deny issuance of registry
identification cards.
However, 2009 AACS, R 333.121(2) promulgated by the Department of Community Health under the Michigan Medical Marihuana Act, Initiated Law 1 of 2008, MCL 333.26421 et seq, which provides that the confidential information “may only be
accessed or released to authorized employees of the department,” prevents the Department of Community Health from entering into a contract with an outside vendor to process registry applications or renewals.
The Attorney General opined that “The Michigan Medical Marihuana Act, Initiated Law 1 of 2008, MCL 333.26421 et. seq. prohibits the joint cooperative cultivation or sharing of marihuana plants because each patient’s plants must be grown and maintained in a separate enclosed, locked facility that is only accessible to the registered patient or the patient’s registered primary caregiver.”
Attorney General opined that “2009 PA 188, which prohibits smoking in public places and food service establishments, applies exclusively to the smoking of tobacco products.
Because marihuana is not a tobacco product, the smoking ban does not apply to the smoking of medical marihuana.
”He further opined that “The Michigan Medical Marihuana Act, Initiated Law 1 of 2008, MCL 333.26421 et seq, prohibits qualifying registered patients from smoking marihuana in the public areas of food service establishments, hotels, motels, apartment buildings, and any other place open to the public.”
Lastly, he opined that “An owner of a hotel, motel, apartment building, or other similar facility can prohibit the smoking of marihuana and the growing of marihuana plants anywhere within the facility, and imposing such a prohibition does not violate the
Michigan Medical Marihuana Act, Initiated Law 1 of 2008, MCL 333.26421 et seq.”
The AG was asked whether a law enforcement official who arrests a patient or caregiver must return marihuana found in that person’s possession upon his or her release from custody. The AG concluded the return is not required.
Issue: Whether the Defendant’s home qualifies as an enclosed, locked facility.
Holding: The court held that the Defendant could not demonstrate that the house was inaccessible to anyone other than licensed growers or qualifying patients.
Issue: Whether the trial court erred when it ruled that the State of Michigan Supreme Court decision of State of Michigan v. McQueen should not be applied retroactively?
Defendants could not have been on notice that the Michigan Supreme Court would interpret the MMMA as it did. Its holding was not foreseeable.Applying the Court’s interpretation of the Act to these defendants, making the conduct in which they were allegedly involved illegal, operates as an ex post facto law in violation of their due process rights. Accordingly, Defendants’ Motion to Dismiss the charges filed against them is GRANTED.
Kalamazoo Township Police searched defendant’s home after his estranged wife reported a possible break-in at the home. Found 15 marijuana plants in an upstairs bedroom and 11 plants behind the garage. Defendant charged with manufacturing marijuana. 7/24/12 UPDATE: The MI Supreme Court vacated the Court of Appeals judgment above and remanded the case to the Court of Appeals for reconsideration in light of Kolenk and King.
Issue: Whether Michigan Compiled Law 750.574, (Improper Transportation of Marihuana), is unconstitutional?
Holding: The Court held that “So Public Act 460 of 2012 is inconsistent as it limits transportation, a right granted by the Medical Marihuana Act, to certain criteria. Therefore, it’s inconsistent with the act pursuant to Section 7 of the act. The act wins, because it handles all of medical marihuana, the act being the Medical Marihuana Act.”
Defendant’s former roommate informed police that he saw grow lights, ventilation fans and marihuana plants growing in the residence. defendant filed a motion to dismiss and for a evidentiary hearing. Defendant argued the facts included in the affidavit failed to establish probable cause that a crime was committed because the MMMA made it legal to possess and grow certain amounts of marijuana. The trial court agreed but they found that any possession of marijuana continues to violate the Public Health Code and is indicative of a criminal act sufficient for a probable cause finding.
Issue: Whether the Defendant was in violation of the Michigan Medical Marihuana Act (MMMA) by failing to comply with Section 4 and Section of the Act?
Holding: The Michigan Supreme Court held that: “Section 4 does not allow the collective action that defendant has undertaken because only one of two people may possess marihuana plants pursuant to §§ 4(a) and 4(b): a registered qualifying patient or the primary caregiver with whom the qualifying patient is connected through the registration process of the Michigan Department of Community Health (MDCH). Because defendant possessed more plants than § 4 allows and he possessed plants on behalf of patients with whom he was not connected through the MDCH’s registration process, defendant is not entitled to § 4 immunity.”
However, the Court further held that: “The Court of Appeals erred when it concluded that defendant was not entitled to assert the § 8 affirmative defense solely because he did not satisfy the possession limits of § 4. Rather, in People v Kolanek, we held that a defendant need not establish the elements of § 4 immunity in order to establish the elements of the § 8 defense.”
Defendant possessed 24 marihuana plants for his connected patients and possessed plants that belonged to other unconnected patients and caregivers. All the plants were cultivated inside defendant’s rental space. Grand Rapids police seized all 88 plants and defendant was charged and convicted with the manufacture of marihuana. Defendant argued that nothing in the MMA prohibited a primary caregiver or qualifying patient from utilizing the same enclosed, locked facility. The Court of Appeals disagreed.
MI-COA ATTORNEY GENERAL BILL SCHUETTE’S AMICUS CURIAE BRIEF
IN SUPPORT OF PLAINTIFF-APPELLANT
Defendants’ business activities of facilitating the transfer, delivery or sale of marihuana between registered qualifying patients and between registered primary caregivers and qualifying patients not in a registered relationship with the caregivers are not protected by the Michigan Medical Marihuana Act. Because defendants’ activities are unprotected, they violate other existing laws and are illegal. Activities that are proscribed by law constitute a public nuisance. Based on the facts and law, the trial court erred in denying the people’s complaint for abatement of a public nuisance.
Prosecution moved to admit evidence that defendant possessed packaged marihuana at a café in order to prove defendant’s knowledge of other marihuana found at his residence. Court also addressed whether a defendant may assert the Section 8 affirmative defense. The court found that to assert the Section 8 affirmative defense, patients must comply with Section 7, which in turns requires patients to comply with the MMA as a whole. Here, there was evidence that marihuana was not grown inside an enclosed, locked facility in violation of Section 4. Because of this, defendant was precluded from raising a Section 8 affirmative defense.
The trial court issued an order stating “neither the Defendants nor their attorneys may make any reference in the presence of the jury to the Medical Marihuana Act or the use of the term medical marihuana in conjunction with, or in reference to, the marihuana present in this case.”
In Judge Gleicher’s opinion, this order was overbroad, negatively affected defendants ‘ ability to cross-examine witnesses and could violate the Confrontation Clause.
Issue: Whether the defendant met the requirements under Section 8 of the MMMA?
Holding: The Court ruled held that “Given defendant’s chosen
evidence, there is no question of fact regarding whether defendant satisfied the second element under § 8(a)(2).”
“Here, even if the physician certification raised an inference of a bona fide patient physician relationship, because defendant failed to present any evidence regarding whether the amount of marihuana he possessed was reasonable, it is not necessary to determine whether he also established a question of fact with respect to the other elements of a § 8 defense, including whether he had a bona fide physician-patient relationship with his respective certifying physician.”
Issue: Whether the lower court erred in quashing the search warrant, suppressing the fruits of the searches, and dismissing the charges,
Holding: The Court held that “In this matter, the new information would not affect the finding of probable cause. The only new information to be added to the affidavit is that defendants possess medical marihuana cards.”
Issue: Whether the Defendant can assert an MMMA §8 defense.
Holding: The Midland County Circuit Court ruled that the Defendant offered no evidence to the court with regard to element (2) of Section 8(a). The Court therefore had no basis at this time to conclude that the amount of marihuana in Defendant’s possession on January 29, 2009 was not more than was reasonably necessary to ensure the uninterrupted availability of marihuana for the purpose of treating or alleviating the defendant’s serious or debilitating medical condition within the
meaning of element (2).
The district court judge correctly ruled that the question of whether probably cause to search 34111 28 Mile Road in Lenox Township when examined against the backdrop of the MMA was not one to be undertaken by the police officers, but was vested in the examining magistrate and, therefore, police should have returned to the magistrate and advised her of both Appellees’ status under the Act and allowed her to re-examine the facts in light of the new information
The circuit court ruled that a search without both probable cause and a warrant is generally unreasonable unless a recognized exception to the warrant requirement applied, and that in this case, the search and seizure was not permissible under the exigent circumstances, consent, plain view, or
Ignorance of the law is no defense. Issue: Whether the defendant should be excused from liability for the charged offenses
because he reasonably – albeit mistakenly – believed that the co-defendant was growing marihuana in compliance with the Michigan Medical Marihuana Act (MMMA)?
Holding: The Michigan Supreme Court held as follows:
“In Michigan v. McQueen, 493 Mich 135 (2013), this Court held that, under the MMMA, “§ 4 immunity does not extend to a registered qualifying patient who transfers marihuana to another registered qualifying patient for the transferee’s use because the transferor is not engaging in conduct related to marihuana for the purpose of relieving the transferor’s own condition or symptoms.” Patient to Patient illegal .
MSC – BRIEF AMICUS CURIAE OF
THE MICHIGAN MEDICAL MARIJUANA ASSOCIATION
Amicus curiae respectfully requests this Court to overrule the judgment of the Court of Appeals on this matter, and hold I) that Defendant Hartwick’s case should be remanded to the circuit court with an order to acquit, 2) that patients and caregivers engaged in medical use of marijuana in in accordance with the MMMA are not subject to enforcement under the MCS A and 3) because marijuana is no longer contraband per se. Brown is no longer good law.
Issue: Whether the defendant demonstrated a legitimate need for medical marihuana use.
Holding: The court found that the defendant failed to demonstrate that a full assessment of his medical history and current condition were conducted or that he had a bona fide relationship with the doctor. Also, the court found that the defendant was not diagnosed with a serious or debilitating condition and defendant failed to prove that the amount of marihuana that he possessed was legitimate.
Defendants were charged with the manufacture of 5-45 kilograms of marijuana in violation of MCL 333.7401. The officers testified that Defendants possessed 50 marijuana plants. Defendants contended they only possessed 35 plants. The Oakland County Circuit Court, Judge Martha D. Anderson, denied Defendants’ motion to dismiss pursuant to Section 4 and found the Defendants failed to establish a question of fact regarding their Section 8 affirmative defenses. Defendants appealed both issues. The Court found the Defendants failed to present any evidence that they possessed an amount of marijuana reasonably necessary to ensure an uninterrupted supply for the treatment of their conditions. To this point, the Court found the Defendants failed to testify regarding how much marijuana they used, and how often they used it, and the certifying physicians failed to testify how much marijuana should be used.
Issue: Whether the Michigan Medical Marihuana Act is a defense against Marihuana being a schedule 1 controlled substance.
Holding: The Court held Kazmierczak, supra, was still governing and that the act didn’t remove marihuana from the realm of contraband. In addition, the Court held that the act created affirmative protections as opposed to legalizing anything
and that the Deputy had no obligation to inquire about card status, rather a card holder had an obligation to advise the Deputy of their cardholder status.
In this context, the question of whether Michigan residency is a
prerequisite to valid possession of a registry identification card under the MMMA also arises. Because we hold that residency is a prerequisite to valid possession of a registry identification
card and that questions of fact regarding the applicability of § 4 immunity must be resolved by the trial court, we vacate the trial court’s order and remand for further proceedings.
Defendant was convicted of manufacturing marijuana in violation of MCL 333.7401(2)(d)(iii) after police discovered 15 plants on his property. Approximately half of the plants were near some metal fencing, with the other half unsecured. Defendant argued that the term “enclosed, locked facility” was constitutionally vague. The Court of Appeals disagreed explaining that the statutory definition is intended to limit access to plants.
Issue: Whether the plants on defendant’s property were in an “enclosed, locked facility?”
Holding: The Court held that “Those plants joined all the others as being readily accessible to a member of defendant’s family, or any passerby his dogs did not decide to treat as a foe. The statute’s requirement that the facility be enclosed and
locked indicates that access to them is to be secured by something more than the grower’s withholding of permission to unauthorized persons to access them. Because defendant grew more than 12 plants and failed to keep them in a secure,
enclosed facility, the MMMA afforded him no defense to that general prohibition.”
Note: the new definition of “enclosed locked facility” in MCL 333.26423(d) which went into effect on April 1, 2013.
Issue: Whether the Defendant was entitled to present an affirmative defense as to all of the marihuana plants on his property?
Holding: The Court held that In light of the most recent Michigan Supreme Court decision of People v. Kolanek, No. 142695, decided May 31, 2012, which was decided after Kiel’s conviction, the Kiel Court of Appeals held that “While this instruction matches the requirements under § 4, the trial court erred in giving this instruction to the jury because, as discussed, supra, defendant was entitled to assert a § 8 affirmative defense at trial. As clarified by our Supreme Court, § 4 applies only to
registered qualifying patients, while § 8 provides an affirmative defense to “patients” generally. Kolanek, ___ Mich at ___ (slip op at 19). Because the jury was not properly instructed concerning the applicable affirmative defense, defendant is entitled to a new trial.”
Holding: The enclosed area itself must have a lock or other security device to prevent access by anyone other than the person licensed to grow marihuana.
Issue: Whether the plain language of the MMMA requires that a defendant asserting the affirmative defense under § 8 also meet the requirements under § 4?
Holding: The court held, in pertinent part:
1. The plain language of the MMMA does not require that a defendant asserting the affirmative defense under § 8 also meet the requirements of § 4.
2. Additionally, to meet the requirements of § 8(a)(1), a defendant must establish that the physician’s statement occurred after the enactment of the MMMA and before the commission of the offense.
3. If a circuit court denies a defendant’s motion to dismiss under § 8 and there are no material questions of fact, then the defendant may not reassert the defense at trial; rather, the appropriate remedy is to apply for interlocutory leave to appeal.
Holding: The Michigan Supreme Court held that the “The immunity from prosecution provided under the MMMA to a registered patient who drives with indications of marihuana in his or her system but is not otherwise under the influence of marihuana inescapably conflicts with MCL 257.625(8), which prohibits a person from driving with any amount of marihuana in her or system. Under the MMMA, all other acts and parts of acts inconsistent with the MMMA do not apply to the medical use of marihuana. Consequently, MCL 257.625(8) does not
Addressed whether the Motor Vehicle Code’s “zero tolerance” provision, which prohibits operating a motor vehicle with any amount of a Scheduled 1 controlled substance in the driver’s body, still applies if the driver is a patient under the Michigan Medical Marihuana Act (MMA). The court concluded the zero tolerance provision controls.
Holding: Yes, the court held that while evidence of a positive test for 11-Carboxy-THC is inadmissible, evidence of the presence of tetrahydrocannibinol (THC) in a Defendant’s system is till relevant in determining whether the Defendant was operating the vehicle while intoxicated. The Court rejected the application of the Medical Marihuana Act retroactively.
Defendant argued the statute unconstitutionally deprived him of due process rights because it was not based on actual impairment, but rather, the simple presence of THC, including its metabloiite, 11-carboxy-THC, in his body. This metabolite is created while the body breaks down THC and contains no psychoactive elements itself. The circuit court agreed. the Supreme Court decision in Feezel was issued. Court of Appeals reversed and remanded for trial. MMA did not change the classification of marijuana as a scheduled 1. Leave to appeal was denied by the Michigan Supreme Court. 488 Mich 1054 (2011).
In sum, we hold that defendant was not immune from arrest because his application paperwork for a registry identification card was not reasonably accessible at the location of his arrest. We further hold that because defendant did possess a registry identification card that had been issued before his arrest when being prosecuted, he is immune from prosecution unless evidence exists to show that his possession of marijuana at the time was not in accordance with
medical use as defined in the MMMA or otherwise not in accordance with the provisions of the MMMA.
Defendant appeals as of right from his conviction by jury of possession of marijuana. MCL 333.7403(2)(d). Defendant was sentenced as a second habitual offender under MCL 333.7413(2) to serve 90 days in jail and 18 months of probation. We affirm.
Court of Appeals reversed holding that Section 4 immunity is only available to medical marijuana patients that possess less than 2.5 ounces of useable marijuana AND less than 12 plants within an enclosed, locked facility.
Expert doctor witness fail. Issue: Can a Defendant assert an MMMA defense when the Defendant’s expert witness
is not qualified under Daubert MRE 702?
Holding: The Court found that Defendant was precluded from asserting MMMA defense. Essentially, Defendant had failed to demonstrate the necessary predicate for the testimony of her expert; namely, that her expert was qualified to render an
opinion.
Defendant appeals as of right from his convictions following a bench trial of manufacturing more than 20 but less than 200 marijuana plants, MCL 333.7401(2)(d)(ii), and possession of marijuana, MCL 333.7403(2)(d).1 Defendant was sentenced to 180 days, but his
incarceration was stayed pending appeal. At issue is a ruling of the trial court denying his motion to dismiss under § 4 of the Michigan Medical Marihuana Act (MMMA), MCL 333.26421 et seq. Because defendant fell under the protections of § 4, we vacate defendant’s
convictions and reverse the trial court’s denial of defendant’s motion to dismiss.
The Court orders that the prosecution’s motion to amend its motion for reconsideration is GRANTED. The Court orders that the amended motion for reconsideration is DENIED.
Issue: Can Defendants use the affirmative defense contained in §8 of the Michigan Medical Marihuana Act (MMMA), MCL 333.26428, if their registry identification card was acquired after the offense?
Holding: Yes, the court held that registered patients under §4 and unregistered patients under §8 would be able to assert medical use of marihuana as a defense even though the defendant does not satisfy the registry identification card
requirement of §4.
Issue: What constitutes a physician-patient relationship?
Holding: The doctor’s recommendations have to result from assessments made in the course of bona fide physician-patient relationships and the Defendants have to see the physician for good-faith medical treatment not in order to obtain marihuana
under false pretenses. [The Legislature has now passed a definitional statute: MCL 333.26423(a)]
The prosecution argued the Defendants were barred from asserting the affirmative defense because they did not possess registry identification cards, did not prove a bona fide physician-patient relationship and failed to establish they possessed an amount of marijuana not more than reasonably necessary to ensure uninterrupted availability for the purpose of treating their medical conditions. The district court disagreed with the prosecution and dismissed the charges pursuant to the affirmative defense. The prosecution appealed to the circuit court, which reversed the district court and reinstated the charges. Defendants appealed the circuit court decision to the Court of Appeals. The Court of Appeals found that the MMMA contains two levels of protection and a registry identification card is NOT required to assert the Section 8 affirmative defense. This ruling was based on the MMMA’s use of the terms “qualify patient” as distinct from “patient:”
BRIEF OF ATTORNEY GENERAL BILL SCHUETTE AS AMICUS CURIAE
Amicus Curiae Attorney General Bill Schuette respectfully requests that this Honorable Court grant Appellant’s Application for Leave to Appeal and affirm in part and reverse in part the Court of Appeals’ September 14,2010 Opinion. Further, this Court should grant leave. to allow all interested parties to brief the issues identified in this amicus brief and in Judge O’Connell’s concurring opinion to clarify the MMMA for the benefit of registered qualifying c. patients and their physicians and primary caregivers, local government, law enforcement, the courts, and the citizens of this State.
Defendant’s marijuana plants were discovered before he obtained a physician’s authorization. Kolanek held that in order to assert the affirmative defense, the patient or caregiver must obtain the physician’s statement prior to arrest.
In sum, the trial court erred as a matter of law in concluding that under Dehko, defendant failed to offer evidence sufficient to create issues of material fact on the elements of a Section 8 defense. Defendant offered sufficient evidence to create genuine issues for the trier of fact as to each of the elements of the defense and the trial court erred in denying defendant’s motion to present the affirmative defense during trial. Accordingly, we vacate defendant’s conviction and sentence, reverse the trial court’s order denying defendant’s request to assert a Section 8 defense, and remand for a new trial
Defendant was convicted before the Recorder’s Court of Detroit, Wayne County, Robert J. Colombo, J., of illegal possession of marijuana and he appealed. The Court of Appeals, 30 Mich.App. 473, 186 N.W.2d 767, affirmed. After granting leave to appeal, the Supreme Court held that conviction would be reversed and defendant discharged; two judges being of opinion that statutory categorization of marijuana along with ‘hard drug’ narcotics for purposes of imposition of penalties denied equal protection, one judge being of opinion that statute denied right to liberty and pursuit of happiness, two judges being of opinion that marijuana cigarettes should have been excluded as evidence obtained as result of illegal entrapment, and two judges being of opinion that minimum sentence of 9 1/2 years constituted cruel and inhuman punishment. (For 2 Joints)
The prosecutor appeals the trial court’s order that granted defendant’s motion to suppress evidence obtained from the search of defendant’s pole barn. The prosecutor charged defendant with one count of delivery or manufacturing of between 5 and 45 kilograms of marijuana, MCL333.7401(2)(d)(ii). For the reasons set forth below, we reverse and remand.
Adam B. Stevens was convicted of second-degree murder, MCL 750.317, and second-degree child abuse, MCL 750.136b(3), Although the judge gave a curative instruction to the jury, this
instruction was not enough to overcome the bias the judge exhibited against the defense throughout the trial. Consequently, we reverse the judgment of the Court of Appeals and remand for a new trial before a different judge
Issue: Whether the Defendant can assert the affirmative defense contained in Section 8?
Holding: The Court ruled that although an inference could be made that some of marihuana was being manufactured for medical purpose, there was no explicit testimony to this fact. The Defendant admitted to the Michigan State Police that his
intent was to make money from his grow operation of 163 plants. He was not entitled to assert the affirmative defense contained in Section 8.
MSC – BRIEF AMICUS CURIAE OF
THE MICHIGAN MEDICAL MARIJUANA ASSOCIATION
Amicus curiae respectfully requests this Court to overrule the judgment of the Court of Appeals on this matter., and hold – 1) that Defendant Tuttle’s case should be remanded to the circuit court with an order to acquit, 2) that marijuana produced in accordance with the MMMA is no longer a controlled substance and is not subject to enforcement under the MCSA, and 3) because marijuana is no longer contraband per se, Brown is no longer good law.
An officer may employ a drug dog during a traffic stop provided the sniff does not delay completion of the tasks related to the traffic infraction. However, the officer may not expand the boundaries of a traffic stop to accomplish the sniff.
The Court reaffirms that police “may conduct certain unrelated checks during an otherwise lawful traffic stop.” Ibid. Thus, it remains true that police may ask questionsaimed at uncovering other criminal conduct and may order occupants out of their car during a valid stop. See Arizona v. Johnson, 555 U. S. 323, 333 (2009); Maryland v. Wilson, 519 U. S. 408, 414–415 (1997); Pennsylvania v. Mimms, 434 U. S. 106, 111 (1977) (per curiam).
Holding: The Michigan Supreme Court held as follows:
The immunity provisions of the MMMA are not preempted by the Federal Controlled Substances Act, and that a municipality cannot enact an ordinance that prohibits growing, possessing or using medical marijuana in compliance with the MMMA.
The holding in United States v Noble is significant in the legal analysis of these situation, because often times the police officers search of the driver or passenger in the vehicle arises from general officer safety patdown of the occupants of the vehicle, and no other reason. The Noble holding sets a precedent that these type of searches are illegal and violate the 4th amendment protections of the driver, absent reasonable suspicion that the person is in fact armed and dangerous.
Issue: Can the DEA have documents turned over to them that involve marihuana illegal activities?
Holding: Yes, the court stated that the DEA is charged with investigating the possession, manufacture and disposition of marihuana and the subpoena issued for the documents pertained to the DEA’s investigation. DEA can subpeona documents
No, the court held that there were no common law crimes in federal law and the Controlled Substance Act did not recognize a medical necessity exception regardless of their legal status under states’ laws. Control substance act not recognize med defense.
Forfeiture Law in Focus: SCOTUS and Sixth Circuit Issue Landmark Rulings The landscape of forfeiture law has been significantly shaped by recent decisions from the U.S. Supreme Court and the Sixth Circuit Court of Appeals. These rulings, in the cases of United States...
Michigan law covered more cocaine-related substances than federal law. More specifically, he argued that Michigan law swept more broadly than federal law because (1) federal law excluded [123I] ioflupane at the time of his sentencing while Michigan did not; and (2) Michigan’s schedule of controlled substances at the time of his sentencing included all of cocaine’s stereoisomers, while the federal schedule only included cocaine’s optical and geometric isomers, which he asserts do not include all of cocaine’s stereoisomers. He also objected to the inclusion of proffer-protected information in the PSR and argued that it could not be used to affect his sentence.
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… backup position, in the face of a defense that another … salts of isomers, when the existence of these isomers, esters, ethers … act” involving trace amounts of heroin and cocaine as violating …
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Michigan law gives the Michigan Department of Health and Human Services (MDHHS) the authority to make public health rules. In response to the COVID-19 (Coronavirus) pandemic, MDHHS has issued a series of public health orders to help slow the spread of the virus and protect vulnerable people.
MDHHS issued an order on January 22, 2021 on Gatherings and Face Masks that was in effect from February 1, 2021 through February 7, 2021. A new MDHHS order was issued on February 4, 2021. The February 4 order replaces the previous order and will be in effect from February 8, 2021 through March 29, 2021.
The information below is a summary of the current order and does not cover all information contained in it. If you have questions, you can read the complete Gatherings and Face Mask Order or contact a lawyer.
Michigan law imposes on the Michigan Department of Health and Human Services (MDHHS) a duty to continually and diligently endeavor to “prevent disease, prolong life, and promote the public health,” and gives the Department “general supervision of the interests of the health and life of the people of this state.” MCL 333.2221. MDHHS may “[e]xercise authority and promulgate rules to safeguard properly the public health; to prevent the spread of diseases and the existence of sources of contamination; and to implement and carry out the powers and duties vested by law in the department.” MCL 333.2226(d).
The novel coronavirus (COVID-19) is a respiratory disease that can result in serious illness or death. It is caused by a new strain of coronavirus not previously identified in humans and easily spread from person to person. COVID-19 spreads through close human contact, even from individuals who may be asymptomatic.
In recognition of the severe, widespread harm caused by epidemics, the Legislature has granted MDHHS specific authority, dating back a century, to address threats to the public health like those posed by COVID-19. MCL 333.2253(1) provides that:
If the director determines that control of an epidemic is necessary to protect the public health, the director by emergency order may prohibit the gathering of people for any purpose and may establish procedures to be followed during the epidemic to insure continuation of essential public health services and enforcement of health laws. Emergency procedures shall not be limited to this code.
See alsoIn re Certified Questions from the United States District Court, Docket No. 161492 (Viviano, J., concurring in part and dissenting in part, at 20) (“[T]he 1919 law passed in the wake of the influenza epidemic and Governor Sleeper’s actions is still the law, albeit in slightly modified form.”); id. (McCormack, C.J., concurring in part and dissenting in part, at 12). Enforcing Michigan’s health laws, including preventing disease, prolonging life, and promoting public health, requires limitations on gatherings and the establishment of procedures to control the spread of COVID-19. This includes limiting the number, location, size, and type of gatherings, and requiring the use of mitigation measures at gatherings as a condition of hosting such gatherings.
On March 10, 2020, MDHHS identified the first two presumptive-positive cases of COVID-19 in Michigan. As of February 3, 2021, Michigan had seen 561,307 confirmed cases and 13,905 confirmed deaths attributable to COVID-19. Michigan was one of the states most heavily impacted by COVID-19 early in the pandemic, with new cases peaking at nearly 2,000 per day in late March. Strict preventative measures and the cooperation of Michiganders drove daily case numbers dramatically down to fewer than 200 confirmed cases per day in mid-June, greatly reducing the loss of life. Beginning in October, Michigan again experienced an exponential growth in cases. New cases peaked at over 10,000 cases per day in mid-November, followed by increases in COVID-19 hospitalizations and deaths.
On November 15, 2020, MDHHS issued an order enacting protections to slow the high and rapidly increasing rate of spread of COVID-19. Cases, hospitalizations, and deaths remained high through early December, threatening hospital and public health capacity. On December 7, 2020, December 18, 2020, and January 13, 2021, MDHHS issued orders sustaining those protections. These orders played a crucial role in slowing the spread in Michigan and have brought new cases down to about 1,500 per day. These lower rates prevented Michigan’s healthcare system from being overwhelmed with a holiday surge. On January 22, 2021, in light of the reduction in cases, MDHHS issued an order permitting indoor dining.
The State of Michigan presently has a seven-day average of 166 cases per million people, which is one and a half times higher than on October 1, but nearly 78% lower than the case rate in mid-November. Test positivity was 5.1% as of February 3, one and a half times higher than the positivity rate in early October. While metrics have decreased from all-time highs, there remains a high rate of spread throughout the state. A high number of cases creates significant pressure on our emergency and hospital systems. Healthcare metrics continue to improve in Michigan but remain higher than what was seen prior to the second surge. An average of 150 daily hospital admissions was seen in Michigan in the last week, with individuals under the age of 60 accounting for a third of all new admissions. There are fewer than 1,400 Michiganders currently hospitalized for COVID-19 and 6.8% of all available inpatient beds are occupied by patients who have COVID-19. The state death rate is 4.9 deaths per million people and there are approximately 350 weekly deaths in Michigan attributable to COVID-19. This is a 64% decrease from the second peak, which reached 13.7 deaths per million on December 10, 2020.
Even where COVID-19 does not result in death, and where our emergency and hospital systems are not heavily burdened, the disease can cause great harm. Recent estimates suggest that one in ten persons who suffer from COVID-19 will experience long-term symptoms, referred to as “long COVID.” These symptoms, including fatigue, shortness of breath, joint pain, depression, and headache, can be disabling. They can last for months, and in some cases, arise unexpectedly in patients who had few or no symptoms of COVID-19 at the time of diagnosis. COVID-19 has also been shown to damage the heart and kidneys. Furthermore, minority groups in Michigan have experienced a higher proportion of “long COVID.” The best way to prevent these complications is to prevent transmission of COVID-19.
Since December 11, 2020, the Food and Drug Administration has granted emergency use authorization to two vaccines to prevent COVID-19, providing a path to end the pandemic. Michigan is now partaking in the largest mass vaccination effort in modern history and is presently working toward vaccinating at least 70% of Michigan residents 16 and older as quickly as possible.
Despite making significant strides in controlling the virus since early November, there is much uncertainty. New and unexpected challenges continue to arise: in early December 2020, a variant of COVID-19 known as B.1.1.7 was detected in the United Kingdom. This variant is roughly 50 to 70 percent more infectious than the more common strain. On January 16, 2021, this variant was detected in Michigan. It is anticipated that the variant, if it becomes widespread in the state, will significantly increase the rate of new cases. Therefore, as lower COVID-19 rates permit easing of precautions, we must continue to proceed slowly and carefully, with close monitoring of cases and impacts, alongside efforts to increase the rate of vaccination.
Considering the above, and upon the advice of scientific and medical experts, I have concluded pursuant to MCL 333.2253 that the COVID-19 pandemic continues to constitute an epidemic in Michigan. I have also, subject to the grant of authority in 2020 PA 238 (signed into law on October 22, 2020), herein defined the symptoms of COVID-19 based on the latest epidemiological evidence. I further conclude that control of the epidemic is necessary to protect the public health and that it is necessary to restrict gatherings and establish procedures to be followed during the epidemic to ensure the continuation of essential public health services and enforcement of health laws. As provided in MCL 333.2253, these emergency procedures are not limited to the Public Health Code.
I therefore order that:
Definitions.
“Camp” means a day, residential, travel, or troop camp for children (as defined by Rule 400.11101(1)(q) of the Michigan Administrative Code).
“Child care organization” means that term as defined by section 1(b) of the Child Care Organizations Act, 1973 PA 116, as amended, MCL 722.111(b)).
“Contact sports” means sports involving more than occasional and fleeting contact, including: football; basketball; rugby; field hockey; soccer; lacrosse; wrestling; hockey; boxing; futsal; martial arts with opponents; and other sports meeting those criteria.
“Competition” means a game of skill played between opposing teams.
“Employee” means that term as defined in section 2(c) of the Improved Workforce Opportunity Wage Act, 2018 PA 337, as amended, MCL 408.932(c), and also includes independent contractors.
“Entertainment and recreational facility” includes: auditoriums; arenas; cinemas; concert halls; performance venues; sporting venues; stadiums; theaters; night clubs; strip clubs; water parks; archery ranges; amusement parks; arcades; bingo halls; bowling centers; casinos; gun ranges; laser tag arenas; trampoline parks; and the like.
“Exercise facility” means a location in which individuals participate in individual or group physical activity, including gymnasiums, fitness centers, and exercise studios.
“Face mask” means a tightly woven cloth or other multi-layer absorbent material that closely covers an individual’s mouth and nose.
“Food service establishment” means that term as defined in section 1107(t) of the Food Law, 2000 PA 92, as amended, MCL 289.1107(t).
“Gathering” means any occurrence, either indoor or outdoor, where two or more persons from more than one household are present in a shared space.
“Household” means a group of persons living together in a shared dwelling with common kitchen or bathroom facilities. In dwellings with shared kitchen or bathroom facilities occupied by 20 or more unrelated persons, households are defined by individuals who share a bedroom.
“Indoors” means within a space that is fully or partially enclosed on the top, and fully or partially enclosed on two or more contiguous sides. Additionally, in a space that is fully or partially enclosed on the top, and fully or partially enclosed on two non-contiguous sides, any part of that space that is more than 8 feet from an open side is indoors.
“Non-contact sports” means sports that are not contact sports.
“Outdoors” means a space that is not indoors.
“Organized sports” means competitive athletic activity requiring skill or physical prowess and organized by a sports organizer.
“Practice” means a training session for a game of skill, involving only members of a single team.
“Principal symptoms of COVID-19” means at least 1 of fever, uncontrolled cough, or atypical new onset of shortness of breath, or at least 2 of the following not explained by a known physical condition: loss of taste or smell, muscle aches, sore throat, severe headache, diarrhea, vomiting, or abdominal pain. Per section 1(j) of 2020 PA 339, this definition represents the latest medical guidance, and serves as the controlling definition.
“Sports organizer” means an association or other organization that sets and enforces rules to ensure the physical health and safety of all participants for an organized sport. Sports organizers at the sub-association level must follow all health and safety rules and procedures set by the association of which they are a member.
General capacity limitations at gatherings.
Indoor gatherings:
Are prohibited at residential venues, except where no more than 10 persons from no more than 2 households are gathered. Such gatherings should be held consistent with guidance issued by the Department of Health and Human Services for such gatherings; and
Are prohibited at non-residential venues, except where no more than 10 persons from no more than 2 households are gathered.
Outdoor gatherings are permitted only as follows:
At residential venues, 25 or fewer persons are gathered, comprised of no more than 3 households;
At non-residential venues:
25 or fewer persons are gathered at a venue without fixed seating, and attendance is limited to 20 persons per 1,000 square feet, including within any distinct area within the event space; or
25 or fewer persons are gathered at a venue with fixed seating, and attendance is limited to 20% of seating capacity of the venue.
The limitations to gatherings in sections 2(a) and 2(b) do not apply to:
Incidental, temporary gatherings of persons in a shared space, such as frequently occur in an airport, bus station, exercise facility, food service establishment, shopping mall, or public pool, except as prohibited in section 3;
Gatherings between an employee and a customer for the purpose of receiving services;
Workplace gatherings that occur consistent with the Emergency Rules issued by MIOSHA on October 14, 2020;
Voting or official election-related activities;
Training of law enforcement, correctional, medical, or first responder personnel, insofar as those activities cannot be conducted remotely;
Education and support services at public, nonpublic, and boarding schools serving students in prekindergarten through grade 12;
Children in a child care organization, after school program, or camp setting;
Persons traveling on a school bus or public transit;
Gatherings for the purpose of medical treatment, including mental health and substance use disorder support services;
Gatherings of up to 25 persons for the purpose of a funeral;
Residential care facilities, which are subject to the December 8, 2020, epidemic order entitled “Requirements for Residential Facilities,” or any replacement of that order;
Cardiopulmonary resuscitation courses and swimming instruction courses;
Proctored, nationally-administered admissions and certification examinations that are not available remotely, provided that examinees are spaced no less than 12 feet apart;
Gatherings at entertainment and recreational facilities that comply with the restrictions set forth in sections 3(a) of this order;
Gatherings for the purposes of indoor group fitness, exercise, or sports that comply with the restrictions set forth in sections 4(b), 4(d), 4(e), and 6 of this order;
Gatherings for public health or other emergency purposes.
As a condition of hosting a gathering under this order, organizers and facilities must design the gathering to encourage and maintain physical distancing, and must ensure that persons not part of the same household maintain 6 feet of distance from one another to the extent possible.
Gathering restrictions for entertainment facilities, recreational facilities, and food service establishments.
Gatherings are prohibited at entertainment facilities and recreational facilities unless:
Venues and activities held at those venues comply with masking and distancing requirements in this subsection. Venues that cannot consistently adhere to these requirements (e.g., water parks, dance floors at a nightclub, or children’s indoor playgrounds inasmuch as staff are not present to prevent physical contact) may not be open.
Patrons remain masked at all times, except when eating or drinking in designated areas;
Groups of patrons participating in activities together (such as those seated together at a concert or movie, or bowling in the same lane) do not exceed 10 persons from up to two households;
Patrons are prevented from mingling with or engaging in physical contact with persons outside their group;
For sports practice and competition, participants comply with the restrictions set forth in section 6.
If participating in stationary activities, groups are spaced or seated at least 6 feet apart. If participating in non-stationary activities, groups maintain a consistent 6 feet of distance from other groups at all times;
Consumption of food or beverages is permitted only where patrons are seated, groups of patrons are separated by at least 6 feet, no more than 6 patrons are seated at a table, and groups of patrons do not intermingle;
Venues that are also food service establishments must, as a condition of offering food or beverages, ensure their designated dining areas comply with all requirements in subsection (b);
Venues abide by the following density limitations:
For venues with fixed seating, occupancy must not exceed 20% of the limits established by the State Fire Marshal or a local fire marshal;
For venues with non-fixed seating, occupancy is limited to 20 persons per 1,000 square feet, including within any distinct space within the venue;
Venues abide by the following maximum capacity limitations:
At stadiums and arenas hosting sporting events as provided in section 6, up to 250 patrons may be gathered at venues with a seating capacity under 10,000, and up to 500 patrons may be gathered at venues with a seating capacity of over 10,000;
For all other entertainment and recreation facilities, no more than 100 patrons may be gathered within any distinct space within the venue.
Gatherings are prohibited at food service establishments unless:
Consumption of food or beverages is permitted only in a designated dining area where patrons are seated, groups of patrons are separated by at least 6 feet, no more than 6 patrons are seated together (at a table, booth, or group of fixed seats), and groups of patrons do not intermingle;
Patrons are not permitted to gather in common areas in which people can congregate, dance, or otherwise mingle;
In the event that an employee of a food service establishment is confirmed positive for COVID-19 or shows symptoms of COVID-19 while at work, a gathering at that food service establishment is prohibited until the food service establishment has been deep cleaned consistent with Food and Drug Administration and CDC guidance;
At establishments offering indoor dining:
The number of patrons indoors (or in a designated dining area of a multipurpose venue) does not exceed 25% of normal seating capacity, or 100 persons, whichever is less, provided, however, that this limitation does not apply to soup kitchens and shelters;
Food service establishments, or the designated dining area of a multipurpose venue, close indoor dining between the hours of 10:00 PM and 4:00 AM;
The venue displays, in a prominent location, the MDHHS “Dining During COVID-19” brochure.
Gathering restrictions for other facilities. In addition to the gathering limitations set forth elsewhere in this order, the following limitations apply to gatherings in the following facilities:
A gathering at a retail store, library, or museum must not exceed 30% of total occupancy limits established by the State Fire Marshal or a local fire marshal. Nevertheless, a retail store, library, or museum may permit one customer at a time to enter if strict adherence to the 30% total occupancy limit would otherwise result in closure. Spaces for indoor dining, including food courts, must comply with the requirements for food service establishments as set forth in section 3(b).
Retail stores must establish lines to regulate entry and checkout, with markings for patrons to enable them to stand at least six feet apart from one another while waiting.
At exercise facilities:
Gatherings must not exceed 25% of the total occupancy limits established by the State Fire Marshal or a local fire marshal;
There must be at least 6 feet of distance between each occupied workout station and physical layout of the space must be established such that exercisers can move between stations while maintaining 6 feet of distance from others at all times; and
Gatherings for group fitness activities or classes are permitted, provided that all persons maintain at least 6 feet of distance from others at all times and wear a face mask at all times.
Gatherings in waiting rooms at outpatient health care facilities, veterinary clinics, and other businesses are prohibited unless the facility implements a system to ensure that persons not of the same household maintain 6 feet of distance. To the extent possible, this system must include a policy that patients wait in their cars for their appointments to be called.
Gatherings at an indoor or outdoor pool not otherwise prohibited by this order must not exceed 25% of bather capacity limits described in Rule 325.2193 of the Michigan Administrative Code.
Gatherings at ice and roller rinks are permitted, provided that occupancy is limited to 4 persons per 1,000 square feet, including within the exercise space. Gatherings for the purpose of open skating are permitted.
In facilities offering non-essential personal care services, including hair, nail, tanning, massage, traditional spa, tattoo, body art, piercing services, and similar personal care services, all services must be provided by appointment, and gatherings in waiting areas are prohibited.
Schools, colleges, technical schools, and universities.
Subject to local health department and school district authority, and consistent with the applicable restrictions in section 6, gatherings at public, nonpublic, and boarding schools are permitted for the purpose of conducting in-person instruction and extracurricular activities in prekindergarten through grade 12.
Gatherings at public, nonpublic, and boarding schools are permitted for the purpose of child care programs, tutoring and academic support, and for providing services to students in need, including food distribution, access to internet connectivity, and physical and mental health care services.
Gatherings at colleges and universities, trade schools, and career schools are permitted for the purpose of holding in-person classes and other events sponsored by the educational institution. The limits imposed by section 2(a) and 2(b) do not apply to such gatherings, but they remain subject to all other applicable requirements of this order.
Organized sports gathering restrictions.
Gatherings for the purpose of contact sports practice and competition are prohibited unless:
Participants remain masked; or
Where it would be unsafe for participants to remain masked, all participants are tested consistent with MDHHS’s document entitled Guidance for Athletics issued February 7, 2021.
Gatherings for the purpose of sports practice and competition are prohibited unless participants maintain 6 feet of distance from each other when not engaged in play.
Gatherings of non-participants for the purpose of observing sports practice and competition must be held consistent with section 3.
Sports organizers, venues, and teams must ensure that all gatherings for the purpose of sports competition and practice comply with the requirements of this order.
Even where it is not required, sports organizers are encouraged to administer a testing program as specified MDHHS’s document entitled Guidance for Athletics issued February 7, 2021.
Face mask requirement at gatherings.
All persons participating in gatherings are required to wear a face mask.
As a condition of gathering for the purpose of transportation, transportation providers must require all staff and patrons to use face masks, and must enforce physical distancing among all patrons to the extent feasible.
Except as provided elsewhere in this order, a person responsible for a business, store, office, government office, school, organized event, or other operation, or an agent of such person, must prohibit gatherings of any kind unless the person requires individuals in such gatherings (including employees) to wear a face mask, and denies entry or service to all persons refusing to wear face masks while gathered.
A person responsible for a business, store, office, government office, school, organized event, or other operation, or an agent of such person, may not assume that someone who enters the facility without a face mask falls within one of the exceptions specified in section 8 of this order, including the exception for individuals who cannot medically tolerate a face mask. An individual’s verbal representation that they are not wearing a face mask because they fall within a specified exception, however, may be accepted.
A person responsible for a child care organization or camp, or an agent of such person, must not allow gatherings unless face masks are worn by all staff. Children must wear face masks as indicated below:
All children 2 years and older when on a school bus or other transportation provided by the child care organization or camp;
All children 4 years and older when in indoor hallways and indoor common areas;
All children 5 years and older when in classrooms, homes, cabins, or similar indoor settings.
Participants in gatherings for any exercise activities, group fitness, or organized sports must comply with face mask requirements listed in MDHHS’s document entitled Guidance for Athletics issued February 7, 2021.
Exceptions to face mask requirements. Although a face mask is strongly encouraged even for individuals not required to wear one (except for children under the age of 2), the requirement to wear a face mask in gatherings as required by this order does not apply to individuals who:
Are younger than 5 years old, outside of a child care organization or camp setting (which are subject to requirements set out in section 7(e));
Cannot medically tolerate a face mask;
Are eating or drinking while seated at a food service establishment or at a private residence;
Are exercising outdoors and able to consistently maintain 6 feet of distance from others;
Are swimming;
Are receiving a medical or personal care service for which removal of the face mask is necessary;
Are asked to temporarily remove a face mask for identification purposes;
Are communicating with someone who is deaf, deafblind, or hard of hearing and whose ability to see the mouth is essential to communication;
Are actively engaged in a public safety role, including but not limited to law enforcement, firefighters, or emergency medical personnel, and where wearing a face mask would seriously interfere in the performance of their public safety responsibilities;
Are engaging in a religious service;
Are giving a speech for broadcast or to an audience, provided that the audience is at least 12 feet away from the speaker; or
Are participating in a testing program specified in MDHHS’s document entitled Guidance for Athletics issued February 7, 2021, and are engaged in practice or competition where the wearing of a mask would be unsafe.
Contact tracing requirements for particular gatherings.
Gatherings are prohibited at the following facilities unless the facility maintains accurate records, including date and time of entry, names of patrons, and contact information, to aid with contact tracing, and denies entry for a gathering to any visitor who does not provide, at a minimum, their name and phone number:
All businesses or operations that provide hair, nail, tanning, massage, traditional spa, tattoo, body art, piercing services, or similar personal care services;
Exercise facilities.
All businesses or operations that provide in-home services, including cleaners, repair persons, painters, and the like must not permit their employees to gather with clients unless the business maintains accurate appointment records, including date and time of service, name of client, and contact information, to aid with contact tracing.
All dine-in food service establishments must maintain accurate records of the names and phone numbers of patrons who purchase food for consumption on the premises, and the date and time of entry.
Upon request, businesses, schools, and other facilities must provide names and phone numbers of individuals with possible COVID-19 exposure to MDHHS and local health departments to aid in contact tracing and case investigation efforts.
Data collected under this section:
Must not be sold, or used for sales or marketing purposes without the express consent of each patron;
Must be protected as confidential information to the fullest extent of the law;
Must not be provided to law enforcement or immigration officials except upon receipt of a lawful subpoena from a court or other lawful court order;
Must be retained for 28 days by the collecting organization, after which time the data must be destroyed. If facilities use existing data to fulfill this requirement, they may instead follow their own pre-existing data retention and destruction policies at the conclusion of the 28-day retention period.
Implementation.
Nothing in this order modifies, limits, or abridges protections provided by state or federal law for a person with a disability.
Under MCL 333.2235(1), local health departments are authorized to carry out and enforce the terms of this order.
Law enforcement officers, as defined in the Michigan Commission on Law Enforcement Standards Act, 1965 Public Act 203, MCL 28.602(f), are deemed to be “department representatives” for purposes of enforcing this order, and are specifically authorized to investigate potential violations of this order. They may coordinate as necessary with the appropriate regulatory entity and enforce this order within their jurisdiction.
Neither a place of religious worship nor its owner is subject to penalty under this order for allowing religious worship at such place. No individual is subject to penalty under this order for engaging in religious worship at a place of religious worship.
Consistent with MCL 333.2261, violation of this order is a misdemeanor punishable by imprisonment for not more than 6 months, or a fine of not more than $200.00, or both.
Nothing in this order affects any prosecution or civil citation based on conduct that occurred before the effective date of this order.
Nothing in this order should be taken to interfere with or infringe on the powers of the legislative and judicial branches to perform their constitutional duties or exercise their authority, or protections guaranteed by the state or federal constitution under these emergency circumstances.
Consistent with any rule or emergency rule promulgated and adopted in a schedule of monetary civil penalties under MCL 333.2262(1) and applicable to this order, violations of this order are also punishable by a civil fine of up to $1,000 for each violation or day that a violation continues.
If any provision of this order is found invalid by a court of competent jurisdiction, whether in whole or in part, such decision will not affect the validity of the remaining part of this order.
This order takes effect on February 8, 2021, at 12:01 AM, at which time the January 22, 2021, order entitled Gatherings and Face Mask Order is rescinded. This order remains in effect through March 29, 2021, at 11:59 PM. Persons with suggestions and concerns are invited to submit their comments via email to COVID19@michigan.gov.
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.
