Criminal Law Blog
Kalamazoo - Criminal Defense Law Blog

Suppressing Evidence:

Posted December 5, 2018

The federal and state constitutions prohibit unreasonable searches and seizures. US Const, Am IV; Const 1963, art 1, § 11; People v Kazmierczak, 461 Mich 411, 417 (2000). The reasonableness of a search or seizure is determined by balancing the governmental interest that justifies the intrusion against an individual’s right to be free of arbitrary police interference. Terry (John) v Ohio, 392 US 1, 20‐21 (1968).

The Fourth Amendment does not require a police officer who lacks the precise level of information necessary for probable cause to arrest to simply shrug his or her shoulders and allow a crime to occur or a criminal to escape. People v Nelson, 443 Mich 626, 638 (1993), quoting Adams (Frederick) v Williams (Robert), 407 US 143, 145 (1972). The protections against unreasonable searches and seizures provided in the United States and Michigan constitutions apply to three categories of encounters between the police and citizens:

Arrests, for which the Fourth Amendment requires that the police have probable cause to believe that a person has committed or is committing a crime, People v Shabaz, 424 Mich 42, 59 (1985);

Investigatory stops (Terry Stops), which are limited to brief, non‐intrusive detentions. In order to justify an investigatory stop, the police must have specific and articulable facts sufficient to give rise to a reasonable suspicion that a person has committed or is committing a crime, Shabaz, 424 Mich at 57; and

Situations in which there is no restraint upon the citizen’s liberty and the officer is seeking the citizen’s voluntary cooperation through non‐coercive questioning, Shabaz, 424 Mich at 56‐57.

Courts frequently entertain motions to suppress evidence that is based on a violation of the Fourth Amendment. This section briefly addresses the two most common types of motions related to this issue. When addressing a challenged search or seizure, several preliminary questions may be appropriate:

  • Was there a search or seizure?
  • Does the defendant have standing to challenge the search?
  • Where did the search take place?
  • Was a warrant required?
  • Was there probable cause?
  • Is exclusion the remedy if a violation is found?



Posted November 22, 2018

Michigan has long recognized the defense of entrapment. People v Sinclair (John), 387 Mich 91, 116 (1972). The overall purpose of the entrapment defense is to deter the corruptive use of governmental authority by invalidating convictions that result from law enforcement efforts that have as their effect the instigation or manufacture of a new crime by one who would not otherwise have been so disposed. People v Juillet, 439 Mich 34, 52 (1991).

The challenge focuses exclusively upon the nature of the police conduct which, if improper, will not be mitigated, justified or excused in any fashion by the disposition of the accused. People v D’Angelo, 401 Mich 167, 182 (1977).

A defendant’s claim of entrapment does not require an assessment of the defendant’s guilt or innocence of the crime charged. People v White (John), 411 Mich 366, 387 (1981). In this respect, the entrapment defense differs from other defenses such as insanity and self‐defense. Id. at 387. Rather, entrapment is a defense that argues against any prosecution of the defendant’s conduct, and in that respect, entrapment is like a jurisdictional defect that is not waived, for example, by a defendant’s guilty plea.  However, an unconditional plea . . . waives claims that occurred before the entry of the guilty plea. People v Crall, 444 Mich 463, 464‐465 (1993).

The entrapment defense requires the presentation of evidence that is collateral to the commission of the crime and that justifies the dismissal of charges against the defendant claiming he or she was entrapped. Juillet, 439 Mich at 52 entrapment is not a defense that negates an essential element of the charged crime); D’Angelo, 401 Mich at 179. Because test for entrapment focuses on the challenged  governmental activity, the defendant is not required to admit the criminal act to raise the issue of entrapment.


Attenuation Doctrine:

Posted October 13, 2018

Barring any egregious conduct on the part of the officers making the arrest, discovery of an outstanding arrest warrant can dissipate or attenuate the taint of an initial illegal stop or arrest. The proper inquiry is whether the evidence came to light through exploitation of the illegal conduct or by means sufficiently distinguishable to be purged of the taint from the illegal conduct. Three factors to consider in determining whether the causal chain has been sufficiently attenuated to dissipate the taint of illegal conduct are:

  • the time elapsed between the illegality and the acquisition of the evidence;
  • the presence of the intervening circumstances; and
  • the purpose and flagrancy of the official misconduct.

However, whether the discovery of a preexisting warrant dissipates or attenuates the illegality of the initial stop or arrest will usually depend on two main points:

  • what evidence did the police obtain from the initial illegal stop before they discovered the outstanding arrest warrant, and
  • whether that initial illegal stop was a manifestation of flagrant police misconduct—i.e., conduct that was
  • obviously illegal, or that was particularly egregious, or that was done for the purpose of abridging the defendant’s rights.
  • Purposeful and flagrant misconduct exists where:

The impropriety of the official’s misconduct was obvious or the official knew, at the time, that his or her conduct was likely unconstitutional but engaged in it anyway, or where the misconduct was investigatory in design and purpose and executed in the hope that something might turn up. But where the police only discover the defendant’s identity as a result of the initial illegal stop or arrest, and the police misconduct was not particularly egregious or the result of bad faith, the discovery of a preexisting arrest warrant will constitute an intervening circumstance that dissipates the taint of the initial illegal stop or arrest. Accordingly, evidence that is discovered in a subsequent search incident to the lawful arrestneed not be suppressed.

In Reese (Richard), 281 Mich App at 293, (2008) the defendant was illegally arrested for loitering. The police subsequently discovered that the defendant had an outstanding misdemeanor warrant and conducted an inventory search of his car, which yielded drugs. Because the officers’ initial misconduct—the arrest for loitering— was not particularly egregious or motivated by bad faith and only yielded the defendant’s identity, the subsequent discovery of the preexisting arrest warrant was not tainted by the illegality of that arrest. As such, the discovery of the preexisting warrant constituted an intervening circumstance that broke the causal connection between the illegal arrest and the discovery of the drug evidence. Because the search was independently justified as a search incident to the lawful arrest on the warrant, the defendant was not entitled to have the drug evidence suppressed.

People v Reese (Richard), 281 Mich App 290, 303, 305 (2008).


Plea of Not Guilty by Reason of Insanity:

Posted September 3, 2018

Before accepting a plea of not guilty by reason of insanity, the court must comply with the requirements of MCR 6.302, except that MCR 6.304(C) (rather than MCR 6.302(D)) governs the manner of determining the accuracy of the plea. MCR 6.304(A). Before accepting a plea of not guilty by reason of insanity, the court must examine the psychiatric reports prepared and hold a hearing that establishes support for findings that:

  • the defendant committed the acts charged, and
  • that, by a preponderance of the evidence, the defendant was legally insane at the time of the offense.” MCR 6.304(C).

Legal insanity means that, as a result of mental illness . . . or as a result of having an intellectual disability,  a person lacks substantial capacity either to appreciate the nature and quality or the wrongfulness of his or her conduct or to conform his or her conduct to the requirements of the law. MCL 768.21a(1).

However, mental illness or having an intellectual disability does not otherwise constitute a defense of legal insanity. Mental illness “means a substantial disorder of thought or mood that significantly impairs judgment, behavior, capacity to recognize reality, or ability to cope with the ordinary demands of life.” MCL 330.1400(g); MCL 768.21a(1). After complying with the applicable requirements of MCR 6.302, the court must advise the defendant, and determine whether the defendant understands that the plea will result in the defendant’s commitment for diagnostic examination at the center for forensic psychiatry for up to 60 days, and that after the examination, the probate court may order the defendant to be committed for an indefinite period of time. MCR 6.304(B).

After accepting the defendant’s plea, the trial court must immediately commit the defendant to the custody of the center for forensic psychiatry for a period not to exceed 60 days. MCL 330.2050(1). The court must forward to the center for forensic psychiatry a full report, in the form of a settled record, of the facts concerning the crime to which the defendant pleaded and the defendant’s mental state at the time of the crime. MCR 6.304(D); MCL 330.2050(1). The defendant may secure an independent psychiatric evaluation by a clinician of his or her choice on the issue of his or her insanity at the time the alleged offense was committed. MCL 768.20a(3). If the defendant is indigent and makes a showing of good cause, the trial court may order the county to pay for an independent psychiatric evaluation.