Providing summaries of opinions as they are released from the Michigan Supreme Court, Michigan Court of Appeals (published & unpublished), and selected U.S. Sixth Circuit. Over 50,000 cases summarized to date.
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Cases appear under the following practice areas:
- Criminal Law (2)
- Personal Protection Orders (1)
- Real Property (1)
- Termination of Parental Rights (1)
Issues: Motion to dismiss based on entrapment; The Michigan Medical Marihuana Act (MMMA)(MCL 333.26421 et seq.); People v. Fyda; People v. Johnson; People v. Jamieson; Claim the trial court erred in granting the prosecutor's pretrial motion in limine to preclude any mention of the MMMA at trial; Elezovic v. Ford Motor Co.; Barnett v. Hidalgo; The retroactive application of Michigan v. McQueen; People v. Doyle; Due process; People v. Brown; MRE 402; Whether collateral estoppel applied because the trial court dismissed marijuana-related charges against seven defendants involved in the operation of the marijuana dispensary where the events giving rise to his charge arose and defendant's charge should have been dismissed; People v. Trakhtenberg; VanVorous v. Burmeister; Narcotic Enforcement Team (NET)
Court: Michigan Court of Appeals (Unpublished)
Case Name: People v. VanSickle
e-Journal Number: 55414
Judge(s): Per Curiam – Servitto, Cavanagh, and Wilder
The court held that the trial court properly denied the defendant's motion to dismiss based on entrapment. His marijuana delivery conviction arose from his sale of 3.8 grams of marijuana to undercover NET officers in the parking lot of a medical marijuana dispensary. The court held that the trial court properly ruled that defendant "failed to establish either that the police engaged in impermissible conduct that would induce an otherwise law-abiding person to commit the crime in similar circumstances or that the police engaged in conduct so reprehensible that the court could not tolerate it." The evidence showed that he was not a target of the undercover investigation of the marijuana dispensary, and the officers were not familiar with him. Instead, they happened to have contact with defendant inside the marijuana dispensary's waiting room. He admitted that he was there to transfer his excess marijuana and obtain reimbursement for his expenses. "Testimony indicated that before arriving at the marijuana dispensary, defendant packaged his surplus marijuana that was in his home, placed it in his vehicle for transport to the marijuana dispensary, and traveled more than an hour with the specific intent of transferring the marijuana to the marijuana dispensary." However, while in the front waiting area, he discussed selling the officers some of his marijuana. When they indicated that they did not have enough money to purchase the quantity that he offered, he offered them a smaller amount. "Although an officer ultimately suggested that they go outside to complete the transaction, defendant admitted that he felt uncomfortable discussing it inside of the marijuana dispensary 'out of respect for the business.'" Once outside, he suggested that the men go to his truck, where he pulled out a digital scale and marijuana, and the transaction was completed. While he alleged that he engaged in "friendly banter" with the officers, which induced him to sell them the marijuana, the court held that "such 'friendly banter' does not establish 'impermissible conduct that would induce an otherwise law-abiding person to commit a crime in similar circumstances.'" The testimony also indicated that during their interaction, "the officers did not appeal to defendant's sympathy, offer him any unusually attractive inducements or excessive consideration, or use any other means to pressure" him to sell them marijuana. Although he complained that it was reprehensible for them to falsely pose as legitimate medical marijuana patients, the Supreme Court has held - "An official may employ deceptive methods to obtain evidence of a crime as long as the activity does not result in the manufacturing of criminal behavior." Further, the testimony indicated that the officers presented their forged medical marijuana cards to the facility, not to defendant. They "merely provided defendant with an opportunity to commit the crime, which is insufficient to establish entrapment." Affirmed.
Issues: Search and seizure; Fourth Amendment; Motion to suppress crack cocaine retrieved from the defendant's rectum by an ER doctor performing a digital rectal exam that involved intubation for about 1 hour and rendered defendant unconscious for 20-30 minutes and paralyzed for 7-8 minutes; Whether the doctor's conduct constituted "state action" under the circumstances; Skinner v. Railway Labor Executives' Ass'n; United States v. Jacobsen; Whether defendant consented; "Medical battery"; United States v. Black (Unpub. 6th Cir.); Whether the doctor's medical purposes immunized the procedures from Fourth Amendment scrutiny; United States v. Lambert; United States v. Howard; United States v. Hardin; United States v. Attson (9th Cir.); Other courts' requirement that a private actor's independent motivation be "legitimate"; Kartorie v. Dunham (Unpub. 3rd Cir.); United States v. Souza (10th Cir.); United States v. McAllister (7th Cir.); United States v. Walther (9th Cir.); "Reasonableness" of the search; Rochin v. California; County of Sacramento v. Lewis; Winston v. Lee; United States v. Gray (5th Cir.); Schmerber v. California; Relevance of the fact "far less intrusive means were available" to investigate whether defendant was hiding contraband in his rectum; Applicability of the "exclusionary rule"; Herring v. United States; United States v. Leon
Court: U.S. Court of Appeals Sixth Circuit
Case Name: United States v. Booker
e-Journal Number: 55340
Judge(s): Rogers and Gilman; Dissent – Gibbons
Holding that the unconsented paralysis, intubation, and rectal exam of the defendant constituted an unreasonable search, and that the exclusionary rule applied, the court concluded that the evidence (a five-ounce rock of crack cocaine) resulting from the procedure should have been suppressed. Thus, the court vacated defendant's conviction and sentence for possession with intent to distribute more than five grams of crack cocaine, and remanded. Officers became suspicious that defendant had contraband hidden in his rectum. After attempting to perform the exam without medication, an ER doctor (L) ordered a nurse to inject a muscle relaxant into defendant's buttock. He "remained uncooperative" and L still could not complete the exam, but he felt a foreign object inside defendant's rectum, which convinced him that it was imperative to complete the exam. L directed a nurse to administer a sedative and a paralytic agent intravenously, and had defendant intubated to control his breathing. He remained intubated for about 1 hour, unconscious for 20 to 30 minutes, and paralyzed for 7 to 8 minutes. The district court denied defendant's motion to suppress. The court held that his Fourth Amendment rights were violated, concluding that "the officers' participation, knowledge, and custody created a sufficiently close nexus" to make L's conduct attributable to the police. While L asserted that defendant gave oral consent to a rectal exam, nothing in the medical record indicated consent and none of the other witnesses present testified that any consent was given. L did not claim that he consented to the paralyzation procedure. The court determined that defendant did not consent to a digital rectal exam with paralysis and intubation. Further, "no reasonable police officer could believe that, without direction from the police, and over the clear refusal to consent by a conscious and competent patient, a doctor could lawfully go ahead and perform such a procedure." The court also held that the exam was unreasonable, concluding that the "affront to personal dignity" here was "categorically greater than what was not permitted in Lee." The factors the Supreme Court applied in Lee compelled the conclusion that this search violated the Fourth Amendment. The court also held that because the officers and L "were sufficiently culpable" in violating defendant's constitutional rights, the exclusionary rule applied despite the Supreme Court's ruling in Herring. This was "not a situation in which the officers relied in good faith on the mistake of a magistrate or judge," or on "an erroneous entry in a warrant database . . . ." It was irrelevant whether the officers and L acted in subjective good faith. "Based on the circumstances of this case, a reasonably well-trained officer and physician would have known that the search was unlawful."
Personal Protection Orders
Issues: Sufficiency of the evidence for the trial court to impose and maintain a PPO against the defendant; Pickering v. Pickering; Pobursky v. Gee; Hayford v. Hayford; Hill v. City of Warren; Deference to the trial court's credibility decisions; MCR 2.613(C); MCL 600.2950a (relief under this section shall not be granted unless the petition alleges facts constituting "stalking"); MCL 750.411h(1)(d); "Course of conduct"; "Harassment"; MCL 750.411h(1)(c); "Unconsented contact"; MCL 750.411h(1)(e); The effect of the trespassing allegation; Whether defendant's conduct "would cause a reasonable person to feel terrorized, frightened, intimidated, harassed, or molested"; Whether the trial court had to make an "explicit finding" that the plaintiff proved all of the necessary elements; MCL 600.2950a(7) and MCR 3.705(B)(6); MCR 2.613(A)
Court: Michigan Court of Appeals (Unpublished)
Case Name: Wilson v. Bosley
e-Journal Number: 55430
Judge(s): Per Curiam - Saad, K.F. Kelly, and Gleicher
The court held that the evidence was sufficient for the trial court to impose and maintain a PPO against the defendant. Thus, the trial court's ruling was not "inconsistent with substantial justice," and the court would not disturb it on appeal. The parties were neighbors and had various conflicts. Plaintiff alleged that defendant "trespassed on her property to antagonize her dogs, used racial slurs against her, fired his gun to intimidate her, pointed his finger at her as though he was shooting her, told her that her child's disability was the result of her drug use, spit on her son, made noise early in the morning, and disrupted her daughter's graduation party." Defendant's wife testified that she had no knowledge he ever engaged in the alleged conduct. She also claimed that when the police investigated the trespassing allegations, they were unable to match the tracks leading from defendant's property to his shoes. Finally, the wife asserted that plaintiff's son had pulled down his pants in front of them. Plaintiff denied this. The trial court did not explicitly announce that it was making factual findings, but told defendant that he could not trespass on plaintiff's property and antagonize her dogs, he could not make motions indicating he was shooting her, and in the trial court's opinion defendant had fired his gun to intimidate plaintiff. Defendant contended on appeal that because the police investigation did not substantiate the trespassing allegation, no harassment occurred. The court noted in spite of this, it was still within the trial court's purview to find that he did trespass and there was no clear error. Further, defendant did not contest numerous other allegations plaintiff made. The trial court also stated that it believed that defendant had made threatening gestures toward plaintiff and fired his gun to intimidate her. "Finding that these actions constituted 'harassment' was not clear error." Affirmed.
Issues: Order quieting title and ordering plaintiff to remove encroachments on the defendants-Thomasmas' property; Acquiescence and adverse possession claims; Evidence that a retaining wall and a shed both extended over the property line identified by the survey; Canjar v. Cole; Beach v. Lima Twp.; Harbor Park Mkt., Inc. v. Gronda; Three theories of acquiescence; Walters v. Snyder; Statutory acquiescence; West MI Dock & Mkt. Corp. v. Lakeland Invs.; Whether the trial court properly quieted title in favor of defendants on the basis of the property line depicted by the survey; Whether the trial court properly held that the encroachment of the stone facing attached to the patio was intentional; Injunctive relief; Taylor v. Currie; Kernen v. Homestead Dev. Co.; Wiggins v. City of Burton; Kratze v. Independent Order of Oddfellows; Claim that the trial court abused its discretion by ordering removal of the stone facing because the encroachment was de minimis and did not interfere with defendants' use of their property; Applicability of the "clean hands" doctrine; Claim that defendants acted inequitably by erecting a fence on plaintiff's property, allowing maintenance employees to trespass on her property, and removing some of her plants; Stachnik v. Winkel; McFerren v. B & B Inv. Group; Weller v. Weller; Whether the trial court properly declined to apply judicial estoppel to bar defendants from arguing that the survey accurately depicted the property line; Chelsea Inv. Group LLC v. City of Chelsea; Spohn v. Van Dyke Pub. Sch.
Court: Michigan Court of Appeals (Unpublished)
Case Name: Virginia S. Olds Declaration of Trust v. Thomasma
e-Journal Number: 55415
Judge(s): Per Curiam – Shapiro, Hoekstra, and Whitbeck
The court held, among other things, that the trial court did not clearly error in its factual determinations. Thus, it affirmed the trial court's order quieting title and ordering plaintiff to remove encroachments on the property of defendants-Thomasma. The case involved a dispute over the boundary between the parties' adjacent properties along a lake. The dispute arose after plaintiff decided to tear down the small cottage that had been on lot 13 for many years and construct a new, much larger home. Construction of the new home began in 2000, and it was completed by 2002. As construction progressed, the Thomasmas testified that they became concerned that plaintiff's home was encroaching on their property. In 2004, after construction was completed, they had a survey conducted of their property. The 2004 survey depicted the property line between their property and plaintiff's property in the same location as plaintiff's 1999 survey, but also showed several encroachments resulting from the construction of the new home. In 2008, the Thomasmas constructed a fence along what they believed was the property line as depicted by the survey. Plaintiff argued that the trial court erred by rejecting the evidence that a retaining wall and a shed both extended over the property line identified by the survey, and that contrary to the trial court's opinion and order, this evidence proved her acquiescence and adverse possession claims. The court held that the trial court did not "reject" the evidence that the retaining wall and shed encroached on defendants' property as plaintiff claimed. Rather, it recognized that the 1999 survey, which was admitted into evidence, depicted these items and showed that they encroached on the Thomasmas' property. Also, as to plaintiff's claim that the encroachments established a new boundary line under the theories of acquiescence and/or adverse possession, the court agreed with the trial court that "the encroachments did not constitute a boundary line that the parties both recognized and treated as the actual boundary line. Nor did the encroachments establish a line that clearly defined a boundary alternative to the surveyed boundary line between the two properties that was actual, visible, open, notorious, exclusive, continuous, and uninterrupted." The encroachments were located next to each other and encroached by different distances. "Further, relative to the approximately 117 feet of the property from the road to the lakeshore, the space occupied by the encroachments was insignificant," and thus, did not establish a boundary line. Also, the court held that the testimony admitted during trial did "not support the conclusion that these encroachments were recognized by the parties and treated as marking the boundary between the properties."
Termination of Parental Rights
Issues: Termination under §§ 19b(3)(c)(i), (g), (i), and (j); In re Mason; In re JK; Reunification services; In re Terry; Harmless error; In re Powers; Child's best interests
Court: Michigan Court of Appeals (Unpublished)
Case Name: In re Sansbury
e-Journal Number: 55431
Judge(s): Per Curiam – Stephens, Wilder, and Owens
Holding that termination of the respondent-mother's parental rights was proper under §§ 19b(3)(g), (i), and (j), and that the trial court did not clearly err in finding that it was also in the child's best interests, the court affirmed the trial court's order terminating respondent's parental rights. The trial court did not clearly err when it found that respondent's parental rights were previously terminated to two children in 2011 after she failed to comply with a treatment plan and failed to show that she could remain drug free. She argued that she was making significant progress on her voluntary PAA, and that the trial court did not consider her recent efforts to address her issues and focused solely on her history, which was not enough to support termination in this case. However, respondent failed "to recognize that the prior terminations alone provided a legal basis for the initial petition or that her positive drug test was evidence, considering her long struggle with addiction and her partner's substance abuse history, of danger to the infant." Further, contrary to her argument, the DHS was not required to provide reunification services because termination was its goal. The court concluded that the trial court erred in its findings under § 19b(3)(c)(i), but held that the error was harmless because the trial court properly found other statutory grounds for termination of her parental rights. As to the child's best interests, the court concluded that the child needed "permanence and stability, and the trial court did not clearly err when it found that respondent did not demonstrate that she could provide either." She had "not maintained a drug free lifestyle for a significant period of time with a positive drug test scant days before the delivery." The child had some cognitive delays and required therapy several times a month. There was "no assurance that respondent would be able to provide for her child's needs given her history of substance abuse." In light of the child's immediate special needs and the trial court's finding as to respondent's inability to achieve stability in the near future, termination "was the only feasible option."
Arbitration & Mediation
Federal False Claims