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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summaries of opinions as they are released from the Michigan Supreme Court, Michigan Court of Appeals (published & unpublished), and selected U.S. Sixth Circuit.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 60,000 cases summarized to date.
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42 USC § 1983 action asserting an excessive force claim; Statute of limitations (SOL); Qualified immunity; Whether plaintiffs were “seized” under the Fourth Amendment; United States v Mendenhall; “Seizure by acquisition of control”; Torres v Madrid; Whether the use of deadly force was justified; Tennessee v Garner; Clearly established right; Floyd v City of Detroit
The court held that defendant-police officer (Fox) was not entitled to qualified immunity where plaintiffs-Campbells were seized by “acquisition of control,” and Fox’s firing of eight shots into their front door could have reasonably led them to believe they were not free to leave. Fox went to plaintiffs’ home to conduct a welfare check. He did not announce that he was law enforcement. Plaintiff-Mark Campbell refused to come out of the house, and Fox, claiming he saw a gun in Mark’s hand, fired shots toward the front door. No firearms were found in the home. Mark said the police might have seen his cell phone. Assault charges against him were dismissed. Plaintiffs sued for excessive force under § 1983. All defendants except Fox were granted qualified immunity. The court first held that it lacked jurisdiction to consider his SOL argument because the issue did not satisfy the collateral order doctrine. As to qualified immunity, he argued there could not have been a Fourth Amendment violation because plaintiffs were not “seized.” A seizure can be found where there is a “show of authority with acquisition of control.” The court noted this “‘involves either voluntary submission to a show of authority or the termination of freedom of movement.’” Fox claimed that while the shots he fired at the home “showed authority,” plaintiffs were not seized because they “did not submit to this show of authority[.]” In Mendenhall, the Supreme Court explained a seizure occurs if “in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave.” The court concluded that where Fox “repeatedly fired at the front door[,]” a reasonable person would not feel free to leave the house. “When Fox shot at their front door, the Campbells effectively submitted to his show of authority by remaining in their home.” The court also concluded that under the facts as viewed in the light most favorable to plaintiffs, “a reasonable officer would not have believed deadly force was justified, as there was no probable cause to believe that Mark posed a threat to anyone’s safety simply by virtue of informing the officers that he had a gun and then opening the door as they asked him to do.” Further, viewing the evidence in a light most favorable to plaintiffs, “a reasonable jury could find that Fox’s use of deadly force was objectively unreasonable.” Finally, given the analogous facts and clear precedent of “Floyd, any reasonable officer in Fox’s position would know that using deadly force, under the circumstances that the Campbells have asserted, was unconstitutional.” Affirmed.
Modification of a personal recognizance bond; MCR 6.106(D) & (E)
In an order in lieu of granting leave to appeal a Court of Appeals order denying a motion to review bail, the court held that the trial court abused its discretion in modifying “defendant’s bond without explaining its reasoning.” The court vacated the trial court’s modification of defendant’s bond, reinstated her original $5.000 personal recognizance bond, and remanded the case to the trial court. It noted that, under MCR 6.106(E), when “a court orders money bail, it must state ‘reasons . . . on the record’ as to why ‘the defendant’s appearance or the protection of the public cannot otherwise be assured . . . .’” In addition, under MCR 6.106(D), pretrial conditions may only be imposed “if the court finds that personal recognizance ‘will not reasonably ensure the appearance of the defendant as required, or will not reasonably ensure the safety of the public . . . .’” The trial court here modified “defendant’s bail from a $5,000 personal recognizance bond to a $25,000 cash bond with a weekly drug testing condition without any explanation for why the modification was reasonably necessary to ensure the defendant’s appearance or to protect the public.” Dissenting, Justice Viviano (joined by Justice Zahra) would deny leave. “One of defendant’s bond conditions was that defendant ‘not violate any law or commit any crime.’” But she violated this condition when she tested “positive for marijuana. Due to her age, she was not legally entitled to possess or use recreational marijuana,” and nothing in the record indicated that she had “a valid medical marijuana card. By violating Michigan law, defendant violated the conditions of her pretrial release.”
Search & seizure; Automobile exception to the warrant requirement; The Michigan Regulation & Taxation of Marihuana Act (MRTMA); MCL 333.27954(1)(g); The Michigan Medical Marihuana Act (MMMA); MCL 333.26427(b)(4); The smell of marijuana as probable cause to search a vehicle; People v Kazmierczak; People v Anthony
Holding that the search of defendant’s car did not violate the Fourth Amendment given that it was conducted after the officer (W) smelled “an odor of freshly burned marijuana” coming from the car, the court reversed the order quashing defendant’s bindover and dismissing the cocaine possession charge against him. It appeared the circuit court determined the cocaine seized from the car “defendant was driving, the only evidence against him, was the fruit of an unlawful search.” The prosecution argued on appeal “that the search was lawful and that the charge should be reinstated.” The court agreed. It noted that before marijuana was legalized, the Supreme Court held in Kazmierczak “that the smell of fresh marijuana alone may establish probable cause to search a vehicle pursuant to the motor-vehicle exception of the warrant requirement.” As to the effect of marijuana’s legalization, the court noted that the MRTMA, in MCL 333.27954(1)(g), “prohibits consuming marijuana while operating a motor vehicle or smoking marijuana within the passenger area of a motor vehicle upon a public way.” Thus, the court concluded that when W “smelled an odor of freshly burned marijuana, he had probable cause to believe that there was a violation of MCL 333.27954(1)(g) because marijuana had been smoked in the vehicle. This probable cause allowed [W] to search the vehicle for recent evidence of that crime. In other words, [W] had probable cause to search the passenger area for evidence of smoked marijuana.” The court found that the facts in Anthony were similar to those here. While the MMMA was involved there and this case concerned the MRTMA, both statutes have “similar prohibitions against smoking marijuana inside a motor vehicle on a public street.” In this case, “the smell of marijuana was emanating from defendant’s vehicle, which was pulled over on a public street. Thus, [W] could search the vehicle for marijuana without a warrant. The fact that he ultimately found cocaine—evidence of a different crime—is not relevant.” The court rejected defendant’s efforts to distinguish Anthony. It reinstated the charge against him and remanded to the circuit court for further proceedings.
Plea withdrawal; People v McIntosh; Inaccurate information at sentencing; Ineffective assistance of counsel; Failure to raise in the trial court the issues raised on appeal; Failure to object to allegedly inaccurate statements by a probation officer at sentencing; Kalamazoo Probation Enhancement Program (KPEP)
The court affirmed the trial court’s order denying defendant’s motion to withdraw her plea of guilty to a probation violation. She argued that she should be allowed “to withdraw her plea of guilty to a probation violation because the judge who presided over her probation revocation and sentencing hearing was not the judge who had imposed her original probation sentence.” The court noted that she did not object to Judge LaSata’s replacing Judge Schrock “at her combined probation revocation and sentencing hearing. Judge LaSata, relying on McIntosh and on defendant’s failure to object,” denied her motion to withdraw her plea. The court held that Judge LaSata “correctly decided the matter in accordance with McIntosh because a defendant will not be found to have been prejudiced by another judge’s presiding over probation revocation and sentencing when the defendant did not timely object.” Defendant also failed to show prejudice. She offered “no reason to doubt Judge LaSata’s assurances from the bench that he was familiar with the facts underlying defendant’s probation. Judge LaSata relied on information provided by a probation officer about the history of this case and the events underlying defendant’s probation terms. In denying defendant’s motion to withdraw her plea, Judge LaSata stated that he was ‘advised in the premises there were multiple violations in this instance.’” Defendant did not show “any lack of information bearing on Judge LaSata's sentencing decision.” Thus, the trial court “did not abuse its discretion by denying defendant’s motion to withdraw her plea.” Defendant also argued that the trial court erred by relying on inaccurate information at sentencing. She asserted that “a probation officer falsely stated at sentencing that defendant had left a substance-abuse treatment program, [KPEP] without permission because she was not allowed to smoke at the facility.” However, there “was no evidence that defendant’s sentence was based on any statement by a probation officer concerning why defendant had left KPEP, and defendant has failed to establish clear error in this regard.” Further, there was no evidence that the trial court considered an allegedly false statement by a probation officer at the probation violation hearing “when issuing the sentence. The trial court clearly stated that the sentence was based on defendant’s continued noncompliance with sobriety and the requirements of her probation.”
Double jeopardy; Whether the circuit court found that the prosecution had failed to put forward sufficient evidence that defendant’s arrest was lawful; Distinguishing People v Lynn & People v Reed
On remand from the Michigan Supreme Court, the court held that “the circuit court, on reconsideration, did not find that the prosecution had failed to put forward sufficient evidence that defendant’s arrest was unlawful.” Thus, it affirmed the circuit court and remanded to the district court. The issue was “whether the circuit court found that the prosecution had failed to put forward sufficient evidence that the defendant’s arrest was lawful.” The court held that “the circuit court did not resolve the lawfulness element of the charged offense. In its opinion and order, the circuit court stated that a new trial was warranted ‘[b]ecause the trial judge took that necessary element away from the jury.’ The circuit court added that the verdict must be ‘overturned because of instructional error’ and that the district court ‘usurped the jury’s fact-finding function.’” It cited Lynn and Reed. “Neither of those cases involved an acquittal, legally insufficient evidence, or otherwise implicated double jeopardy. Importantly, the circuit court expressly declined to ‘determine[] that the actions of the officers in this case were not lawful.’” Thus, because the circuit court concluded that “a new trial was warranted because of instructional error, not legally insufficient evidence, double jeopardy does not bar retrial.” It was true “the circuit court noted near the end of its opinion and order that ‘[t]he insufficiency of the evidence on the element of proving that the officers were in the lawful performance of their duties arises from the error of the court and not from any wrongdoing on the part of the prosecution.’” While this statement explicitly referenced the “insufficiency of the evidence,” it was “clear from context that the circuit court used that phrase only to respond to defendant’s position that the case should be dismissed and not to convey that the circuit court evaluated the prosecution’s evidence on the challenged element and found it wanting. Again, the circuit court expressly declined to ‘determine[] that the actions of the officers in this case were not lawful.’” For these reasons, the court determined that “the circuit court did not find that the prosecution had failed to put forward sufficient evidence that defendant’s arrest was lawful. Instead, the circuit court merely determined that the lawfulness element of the offense was improperly removed from the jury’s consideration through instructional error. Consequently, because the opinion and order was not an ‘acquittal’ for the purposes of double jeopardy,” a retrial was not barred on that basis.
Quiet title action; The viability of the doctrine of common-law abandonment as applied to roads under the jurisdiction of county road commissions; MCL 600.5821; MCL 224.18; Ambs v Kalamazoo Cnty Rd Comm’n; Huron Mountain Club v Marquette Cnty Rd Comm’n; Principle that a highway may cease to be such by voluntary abandonment and non-use; Gardens of Rest v Upper MI Power & Light Co
The court held that because “nothing in either MCL 600.5821 or MCL 224.18 supports that the Legislature clearly intended to abrogate the doctrine of common-law abandonment,” the doctrine “remains a viable legal theory, and plaintiffs’ claim can proceed.” The trial court granted partial summary disposition for plaintiffs, finding that common-law abandonment is still a viable legal theory. On appeal, the court rejected defendant’s argument that the Legislature barred claims for common-law abandonment against governmental entities in MCL 600.5821(2)(c) by stating that “those entities are not subject to claims for adverse possession, acquiescence for the statutory period, or prescriptive easement.” It noted the “clear and unambiguous language of MCL 600.5821(2)(c) lists only claims for ‘adverse possession, acquiescence for the statutory period, or a prescriptive easement,’ not common-law abandonment. This plainly suggests that the Legislature did not intend to include claims for common-law abandonment in the list of claims barred by MCL 600.5821(2)(c).” In addition, the court “has recognized the claim of common-law abandonment in recent years such as in Ambs, and the doctrine was well established in this state’s jurisprudence long before then.” As to defendant’s reliance on MCL 600.5821(2)(a) and (b), a plain reading suggests “those subsections only apply when the governmental entity is the plaintiff.” Not only was the court’s “interpretation of MCL 600.5821(2)(a) and (b) supported by the plain language of the statute, but it is preferable to defendant’s because it does not render any part of the statute surplusage.” The court next rejected defendant’s contention that plaintiffs’ claim failed because it was actually one for adverse possession or acquiescence and thus, explicitly barred by MCL 600.5821(2)(c). The “complaint clearly lays out a set of facts from which, if proven true, a reasonable factfinder could conclude that plaintiffs established a claim for common-law abandonment.” Finally, it rejected defendant’s alternative argument relying on MCL 224.18 and Huron Mountain Club. A “simple reading of Huron Mountain Club makes clear that it never addressed the issue raised by defendant here.” The sentence in that case that defendant relied “on remains true in the context of abandonment petitions initiated pursuant to MCL 224.18(4), but offers no guidance on whether MCL 224.18 provides the exclusive means by which a county road commission can abandon a public highway,” the question at issue here. Affirmed.