Articles Posted in Weapons Offenses

Earlier this month, a state appellate court issued an interesting opinion in a Michigan gun case. The opinion implicates several areas of criminal law, including the state’s open-carry law and constitutional protections against unreasonable searches and seizures.

The Facts of the Case

According to the court’s opinion, the defendant was checking his oil at a gas station. As the defendant leaned over the hood of his car, officers passed by on routine patrol. As the officers glanced towards the defendant, they saw what they knew to be a handgun sticking out of the waistband of the defendant’s pants. The officers asked the defendant if he had a concealed pistol license. The defendant responded that he did not, at which point the police arrested him.

The defendant filed a motion to suppress, arguing that under the Michigan open carry law, the fact that officers saw him carrying a gun in public was not probable cause to believe he had committed a criminal offense. The Michigan open carry law allows gun owners to carry a pistol on their person, provided it is for a lawful purpose and not concealed.

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Recently, a Michigan appellate court issued an opinion stemming from a defendant’s motion to suppress evidence based on his Fourth Amendment rights to be free from unreasonable searches and seizures. In this case, the defendant was a passenger in a vehicle. The police pulled over the vehicle for having cracks in the windshield. When deputies approached the car, they noticed firearms on the floor, sitting in front of the defendant. The deputies searched the car and discovered that the gun was loaded. They also discovered heroin and cocaine behind the passenger door handle. The defendant was charged with several serious offenses and convicted.

The Fourth Amendment of the United States Constitution, provides for the “right of the people to be secure in their persons..and effects, against unreasonable searches and seizures.” Barring certain exceptions, searches and seizures that are conducted without a warrant are unreasonable. However, law enforcement may stop and detain a vehicle if they can articulate a reasonable basis for their suspicion that a vehicle or one of its occupants are violating the law. Michigan courts have held that determinations regarding reasonable suspicion must be made on a case-by-case basis-evaluating the totality of the circumstances. The credibility of a police officer is often a key consideration in these cases.

In this case, the court found that the deputies’ stop of the vehicle was lawful. The court cited the deputies’ testimony in which they testified that the cracked windshield provided them with a reasonable suspicion that one of the vehicle’s occupants was violating a law. Next, the court found that the seizure of the firearm and controlled substances were proper. The court reasoned that under the “plain view” doctrine, the police officer may properly search a vehicle, without a warrant, if the illegal items are in a position from which the officer can view the item.

Recently, a state appellate court issued a written opinion in a Michigan marijuana case in which the defendant argued that the identity of the confidential informant used by law enforcement should be disclosed. Ultimately, the court concluded that the defendant was not entitled to the disclosure and affirmed the defendant’s conviction for both the distribution of marijuana as well as a firearms offense.

The Facts of the Case

According to the court’s opinion, police officers were tipped off by a confidential informant that the defendant was selling marijuana from his home in Pontiac, Michigan. As officers arrived at the defendant’s home, they saw him sitting on his front porch with a pistol in his hand. Officers went into the defendant’s home, where he was searched. Officers located marijuana, cocaine and a loaded gun.

In a pre-trial motion, the defendant argued that the prosecution should be compelled to release the confidential informant’s identity. The defendant based his argument on the fact that the defendant had a medical marijuana card and only distributed marijuana to his patients. The defendant argued that, if the confidential informant existed, it was not illegal for the defendant to sell marijuana to him.

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Earlier this month, a state appellate court issued an opinion in a Michigan gun possession case discussing the concept of constructive possession. When someone is charged with a possessory offense, the prosecution can prove the defendant possessed the item by showing he had actual or constructive possession. Actual possession is when a person has “immediate, physical control” over an object. Constructive possession, under Michigan law, occurs “when a person is near a firearm and there is indication of his or her control of the firearm, either directly or through another person.” Thus, a person must have both knowledge of an item as well as reasonable access to it, before they can be found to have possessed it.

According to the court’s opinion, the defendant was alleged to have shot at his wife’s former partner. The defendant was identified by the victim, the victim’s mother, and the victim’s new girlfriend. Three fired shell casings were recovered from the scene. Police arrested the defendant and, after searching his home, found a firearm and ammunition. However, the casings found at the scene were not proven to have come from the gun recovered from the defendant’s home.

At trial, the defendant testified that he knew the gun was in his home, but explained that it belonged to his father. The defendant also explained that he was home the entire night, that he was not involved in the shooting, and that he only left for 15 minutes to run to the store. The defendant’s friend testified that he was with the defendant when he went to the store. The jury acquitted the defendant an all charges except the firearm charge. The defendant appealed his conviction, arguing that the prosecution failed to prove he “possessed” the firearm.

Earlier this year, a state appellate court issued an opinion in a Michigan gun case in which the defendant challenged the officer’s search of his vehicle. Ultimately, the court concluded that the search was permissible based on the fact that the officer noticed a strong smell of marijuana, even though the defendant had a valid medical marijuana card.

The Facts of the Case

According to the court’s opinion, a police officer stopped the defendant for speeding. When the officer approached the defendant’s car, he noticed a strong odor of fresh marijuana, indicating to the officer that there was a “good quantity” of marijuana in the vehicle.

Initially, the defendant denied having marijuana. However, after further conversation, the defendant admitted that he had harvested marijuana earlier that day. The defendant claimed to have a medical marijuana caregiver card, but the officer testified he could not recall if the defendant provided the card at the time. The officer was able to confirm that the defendant had a medical marijuana caregiver card.

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