Ineffective assistance of counsel; Failure to challenge a search & seizure; The Fourth Amendment; Whether an exception to the warrant requirement applied; Consent; People v Frohriep; Protective sweep; Maryland v Buie; Distinguishing People v Beuschlein; Disclosure of photographic evidence; Constitutionality of Michigan’s FIP statute (MCL 750.224f); Facial challenge; People v Deroche; District of Columbia v Heller; McDonald v Chicago; New York State Rifle & Pistol Ass’n, Inc v Bruen; United States v Rahimi; As-applied challenge

Concluding that the record was insufficient to determine whether defense “counsel was ineffective for failing to move to challenge the search and seizure of the firearms” based upon consent, the court remanded for the trial court to conduct a Ginther hearing. It held that the protective sweep exception to the warrant requirement did not apply. Finally, it rejected defendant’s facial and as-applied constitutional challenges to Michigan’s FIP statute. He was convicted of FIP and felony-firearm after police were dispatched to his mother’s home on a call about “a domestic altercation involving an armed man.” The issue as to his ineffective assistance claim was whether the police search of the house “was justified under a recognized exception to the warrant requirement, such that defense counsel’s decision not to challenge the search and admission of related evidence was objectively reasonable.” The prosecution relied on the consent and protective sweep exceptions. The court concluded that, based on the limited “testimony addressing any consent for the officers to enter the house, it is debatable whether the ‘typical reasonable’ person would have understood that defendant’s mother consented to law enforcement entering the residence for the sole purpose of locating defendant’s grandmother, or whether they received permission to search the entirety of the home to see whether ‘anybody else’ was inside.” It noted that the trial court “never made a finding as to the extent of any permission granted by the mother.” As to the second exception, the court held that the trial record did “not support the officers’ action of making a protective sweep of the entire house.” While the prosecution and trial court viewed Beuschlein as controlling, the court found that there were “important factual distinctions between the circumstances facing police in Beuschlein and those here.” Defendant also raised a claim related to the prosecution’s disclosure of photographic evidence, and the court directed the parties and the trial court to also address those issues on remand. As to his constitutional challenges, the court held that (1) “MCL 750.224f is not facially invalid under the Second Amendment” and (2) as applied to defendant, his “conviction under MCL 750.224f did not violate his Second Amendment right.”