March 2021
Defense Has Right to an Unredacted Police Report
As a criminal attorney one of my great frustrations is that we are not treated by the system as being as trustworthy as our civil counterpart. In civil cases, sensitive information is routinely shared with the other side subject to a protective order, e.g. we agree under the pain of contempt not to further distribute the items. In civil cases, we can send written questions to our opponent about the nature of their case. We can bring witnesses into our office to ask questions and we can demand the right to inspect documents before trial. In criminal cases, we are normally stuck with police reports and very limited additional information about the state’s case. A recent Court of Appeals case improves the situation somewhat.
In People v Jack, the Court of Appeals was tasked with the question of whether the State could keep witness contact information from the defense. The American Bar Association and federal courts have long held that a witness in a criminal case does not belong to either side, yet prosecutors’ continually attempt to frustrate defense access to prosecution witnesses.
The defense is entitled to a copy of the police reports under Michigan Court Rule (“MCR”) 6.201(B)(2). In Jack, the State provided redacted police reports to the defense which excluded the contact information for their witnesses. The defense requested unredacted versions of the report and the State refused. The defense filed a motion to compel the production of these reports. “The trial court noted that the police reports could be redacted if they concerned a continuing investigation, as provided by MCR 6.201(B)(2), or the prosecutor could seek a protective order,” and therefore allowed the production.
The prosecution appealed the matter to the Court of Appeals which upheld the trial court 2-1. The majority held that the Court Rule presumptively entitles a criminal defendant to the disclosure of unredacted police reports. If the state has individualized cause in a particular case to withhold such information, they have a duty to file a motion for a protective order. They simply cannot refuse to produce the non-redacted documents and shift the burden to the defense.
Dissenting Judge Boonstra disagreed. He held that the Court Rules allow such redactions and that the defendant’s redress would be to file a motion for an in camera hearing under MCR 6.201(D) to determine whether the redactions are warranted.
The People are still within the time limit to appeal to the Michigan Supreme Court.
In People v Jack, the Court of Appeals was tasked with the question of whether the State could keep witness contact information from the defense. The American Bar Association and federal courts have long held that a witness in a criminal case does not belong to either side, yet prosecutors’ continually attempt to frustrate defense access to prosecution witnesses.
The defense is entitled to a copy of the police reports under Michigan Court Rule (“MCR”) 6.201(B)(2). In Jack, the State provided redacted police reports to the defense which excluded the contact information for their witnesses. The defense requested unredacted versions of the report and the State refused. The defense filed a motion to compel the production of these reports. “The trial court noted that the police reports could be redacted if they concerned a continuing investigation, as provided by MCR 6.201(B)(2), or the prosecutor could seek a protective order,” and therefore allowed the production.
The prosecution appealed the matter to the Court of Appeals which upheld the trial court 2-1. The majority held that the Court Rule presumptively entitles a criminal defendant to the disclosure of unredacted police reports. If the state has individualized cause in a particular case to withhold such information, they have a duty to file a motion for a protective order. They simply cannot refuse to produce the non-redacted documents and shift the burden to the defense.
Dissenting Judge Boonstra disagreed. He held that the Court Rules allow such redactions and that the defendant’s redress would be to file a motion for an in camera hearing under MCR 6.201(D) to determine whether the redactions are warranted.
The People are still within the time limit to appeal to the Michigan Supreme Court.
Michigan’s Open Carry Law: A Trap for the Unwary
I am pro-gun. I have a CPL permit and recognize the right of a person to carry a gun in self-defense. Despite this, I frequently find myself in fights with people over “open carry.” My opinion as a lawyer is that it is a legal minefield that most people cannot properly negotiate on a regular basis. If they slip, they have a felony conviction. Last week’s opinion in People v Wheeler, Court of Appeals No. 355419 (Mich App 3-11-2021) is a perfect example.
Simon Wheeler had a gun in his waistband while working on his car in the City of Detroit. Police officer’s passing the Defendant noted his gun in his “waistband with its handle sticking out of his coat.” The Defendant successfully moved to suppress the evidence claiming that he was open carrying the firearm and hat was permitted under Michigan law. The Court of Appeals reversed this ruling in a published opinion.
The Court of Appeals said “It has long been established by this Court that total concealment or invisibility is not required under the statute to support such a conviction.” Rather, “a weapon is concealed when it is not discernible by the ordinary observation of persons coming in contact with the person carrying it, casually observing him, as people do in the ordinary and usual associations of life.” Id. (cleaned up). The Court went on to note that “While the handgun was partially visible because of the positioning of defendant’s body and the vantage point of the police officers, it cannot be said that defendant was “openly” carrying the weapon in full view for the public to see upon casual observation. A portion of the gun was in defendant’s waistband and the portion that was not in his waistband was, at minimum, partially covered by his clothing.”
In order to be openly carried, the fire arm had to be ”in full view for the public to see upon casual observation.” Normally the question of whether the concealment is open is a question of fact for the jury. While a person can carry a gun in a concealed manner on their own property, one step off of your property lands you felony.
Should a person wish to attempt to open carry a weapon, their best strategy would be to carry the gun in a manner that makes it completely obvious. A clear holster worn so that it can’t be obstructed by outer clothing would seem to be the best solution. Also be aware that there is no such thing as “open carry” inside a motor vehicle. The firearm must be transported unloaded, in a locked case which is inaccessible to the occupant of the motor vehicle.
Simon Wheeler had a gun in his waistband while working on his car in the City of Detroit. Police officer’s passing the Defendant noted his gun in his “waistband with its handle sticking out of his coat.” The Defendant successfully moved to suppress the evidence claiming that he was open carrying the firearm and hat was permitted under Michigan law. The Court of Appeals reversed this ruling in a published opinion.
The Court of Appeals said “It has long been established by this Court that total concealment or invisibility is not required under the statute to support such a conviction.” Rather, “a weapon is concealed when it is not discernible by the ordinary observation of persons coming in contact with the person carrying it, casually observing him, as people do in the ordinary and usual associations of life.” Id. (cleaned up). The Court went on to note that “While the handgun was partially visible because of the positioning of defendant’s body and the vantage point of the police officers, it cannot be said that defendant was “openly” carrying the weapon in full view for the public to see upon casual observation. A portion of the gun was in defendant’s waistband and the portion that was not in his waistband was, at minimum, partially covered by his clothing.”
In order to be openly carried, the fire arm had to be ”in full view for the public to see upon casual observation.” Normally the question of whether the concealment is open is a question of fact for the jury. While a person can carry a gun in a concealed manner on their own property, one step off of your property lands you felony.
Should a person wish to attempt to open carry a weapon, their best strategy would be to carry the gun in a manner that makes it completely obvious. A clear holster worn so that it can’t be obstructed by outer clothing would seem to be the best solution. Also be aware that there is no such thing as “open carry” inside a motor vehicle. The firearm must be transported unloaded, in a locked case which is inaccessible to the occupant of the motor vehicle.
Michigan Court of Appeals Says Probationers Have a Right to Use Medical Marijuana on Probation
On February 11, 2021, the Michigan Court of Appeals held in People v Thue, No. 353978, 2021 WL 519716, at *1 (Mich Ct App, February 11, 2021), that probationers who held medical marijuana permits had the right to use their medical marijuana , while on probation. This decision resolved a conflict with various courts around the state. Mr. Thue unsuccessfully asked a Grand Traverse District Court to modify his probation to allow him to use medical marijuana while on probation. The District Court denied the motion to modify his probation and Mr. Thue applied for permission to appeal to the Circuit Court which upheld the condition. Mr. Thue then took the appeal to the Court of Appeals which reversed.
It is important to note that medical marijuana patients have the burden of showing that they remain in compliance with the MMMA to avoid facing possible issues on probation. If you are a medical marijuana patient, this means you must pay close attention to the requirements to qualify for Section 4 immunity under the MMMA. If you engage in conduct that does not fall within the protection of Section 4 immunity, you could still face a probation violation.
Thue offers powerful protection for medical marijuana patients to continue to use medical marijuana while on bond for a pending charge. The Court’s rationale certainly seems to suggest that the MMMA also protects a medical marijuana patient’s ability to use medical marijuana while on bond for a pending criminal offense, but the issue is not officially decided and many judges will be resistant to the argument. Additionally, Michigan’s recreational marijuana law, the Michigan Regulation and Taxation of Marihuana Act (“MRTMA”), shares virtually all of the same statutory language that the Court of Appeals relied upon to reach its decision in the Thue case, there remains a question of whether adults over the age of 21 in Michigan can be forced to stop using recreational marijuana while on bond or probation. Section 5 of the MRTMA provides that adults age 21 and up in Michigan cannot be subject to “penalty in any matter” for engaging in conduct that is protected by the MRTMA. This is the same language that the Court of Appeals relied upon from the MMMA in reaching its decision in Thue. Further, Section 4 of the MRTMA has the same kind of preemption language that appears in the MMMA. As a result, it would appear that the Thue opinion opens the door for an argument that a court may not prohibit MRTMA-compliant marijuana activity as a condition of probation.
Probationers can legally use marijuana on probation today. The State has until April 8th 2021 to appeal the ruling to the Supreme Court.
It is important to note that medical marijuana patients have the burden of showing that they remain in compliance with the MMMA to avoid facing possible issues on probation. If you are a medical marijuana patient, this means you must pay close attention to the requirements to qualify for Section 4 immunity under the MMMA. If you engage in conduct that does not fall within the protection of Section 4 immunity, you could still face a probation violation.
Thue offers powerful protection for medical marijuana patients to continue to use medical marijuana while on bond for a pending charge. The Court’s rationale certainly seems to suggest that the MMMA also protects a medical marijuana patient’s ability to use medical marijuana while on bond for a pending criminal offense, but the issue is not officially decided and many judges will be resistant to the argument. Additionally, Michigan’s recreational marijuana law, the Michigan Regulation and Taxation of Marihuana Act (“MRTMA”), shares virtually all of the same statutory language that the Court of Appeals relied upon to reach its decision in the Thue case, there remains a question of whether adults over the age of 21 in Michigan can be forced to stop using recreational marijuana while on bond or probation. Section 5 of the MRTMA provides that adults age 21 and up in Michigan cannot be subject to “penalty in any matter” for engaging in conduct that is protected by the MRTMA. This is the same language that the Court of Appeals relied upon from the MMMA in reaching its decision in Thue. Further, Section 4 of the MRTMA has the same kind of preemption language that appears in the MMMA. As a result, it would appear that the Thue opinion opens the door for an argument that a court may not prohibit MRTMA-compliant marijuana activity as a condition of probation.
Probationers can legally use marijuana on probation today. The State has until April 8th 2021 to appeal the ruling to the Supreme Court.