St. Joseph Michigan Criminal Defense Blog

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criminal defense attorney berrien county

The Expansion of Digital Evidence in Criminal Prosecutions and Defense

criminal defense attorney berrien county

Over the years, we have become increasingly reliant on technology to assist us with the most minute and, at times, most essential tasks. Whether or not we understand it, many of these tasks require the collection of extensive amounts of data about the most intimate details of our lives. Smartphones feature GPS location services to provide directions and suggest nearby restaurants, stores, and places of interest. New technology even allows phones to tailor their suggestions to mimic our most frequented establishments—such as one’s favorite restaurants, coffee shops, or boutiques. In order to provide location services, however, our phones must collect data on exactly where we are throughout our entire day. Other devices, personal wearable activity trackers made by companies like Fitbit and Garmin, record our movements and sleep patterns not only for our benefit, but to contribute to private metadata aggregates on public health and wellness.

Such technology has also been transformative for criminal proceedings, as both prosecutions and defense attorneys have utilized data from smartphones and other devices as evidence to assist in their cases. For example, in April 2017, police in Ellington, Connecticut claimed to have solved the December 2015 murder of Connie Dabate due to contradictions between her husband’s testimony and the story told by digital evidence related to the case.

Connie Dabate’s husband, Richard Dabate, claimed that a masked intruder to their home had killed his wife. Richard alleged that while he was driving to work one morning, his cell phone alerted him that his home’s burglar alarm had been triggered. He then claimed that he pulled over on the side of the road and emailed his boss from his cell phone to say that he would be late to work. Afterwards, Richard claimed to drive home and to arrive at approximately 9 a.m., when he encountered the intruder. Richard said that during his brief struggle with the intruder, he heard his wife come in the garage door and he yelled at her to run. He said that during the fight, he was briefly incapacitated. It was after he recovered that Richard claimed he ran after the intruder, only to see the intruder shoot and kill his wife.

To verify Richard Dabate’s story, however, police obtained warrants to several digital sources, including the couple’s phone records, Richard’s computer records, Facebook records for Richard, Connie, and Richard’s girlfriend, various text messages, and Connie’s Fitbit records. When police combed through the extensive amount of digital data, they discovered several discrepancies between the data and Richard’s story.

While Richard claimed his home’s burglar alarm was triggered before 9 a.m., data from the home’s alarm system indicated it hadn’t been activated until 10:11 a.m.—when Richard pressed the panic button on his car key fob to alert the police. Also, geo-location data revealed that the email Richard sent to his boss explaining that he’d be late for work was actually sent from his laptop—not his cell phone, as he alleged. Surveillance camera footage at the local YMCA, data from the home’s alarm system, Connie’s Facebook data, and data from Connie’s Fitbit proved that after leaving her fitness class at the YMCA at 9:18 a.m., Connie arrived home at 9:23 a.m. It wasn’t until 10:05 a.m., however, that Connie’s Fitbit registered her last movement—about an hour later than the time Richard said Connie was killed. The use of digital evidence—that of GPS location tracking, the Dabates’ home alarm system’s log, Facebook data, and that of Connie’s Fitbit—allowed the Ellington, Connecticut police to create an extensive case against Richard Dabate. Richard has now been charged with murder, evidence tampering, and making a false statement.

In an article by Tracy Connor from April 29, 2017, NBC News quoted Jonathan Rajewski, a digital forensics instructor at Champlain College in Vermont, as saying, “Ninety-nine percent of crime will now have a digital component…we have these little sensors all over. We’re wearing them and they’re in our homes.” And now with the increasing popularity of Amazon Echo and other electronic personal assistant smart speakers, which record audio when prompted by “hot words,” and the Amazon Echo Look, outfitted with a camera—which records video in addition to audio—massive amounts of digital data will be increasingly utilized as evidence in court proceedings by both prosecution and defense attorneys. When combined with other forms of digital evidence—for example, e-mails, computer memory and back-ups, Internet browser histories, ATM transaction logs, and electronic door locks and doorbells—attorneys must adjust to the ever-increasing surge of digital evidence by remaining up-to-date with technological advancements and by refining the manner in which they analyze and utilize digital evidence in the courtroom.

For an attorney who is on the cutting edge of advancements in technology and the increasing use of digital evidence in the courtroom, contact the Peter J. Johnson Law Office, PLLC, a leading criminal defense attorney in Berrien County, at 269.982.1100 or visit www.AttorneyPeterJohnson.com.

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drug attorney cass county

Drawing the Line Between “Drying” and “Dried”: Michigan Court of Appeals Clarifies the MMMA

drug attorney cass county

A recent opinion by the Michigan Court of Appeals has clarified standards for what constitutes “usable marijuana” under the Michigan Medical Marihuana Act or MMMA. The opinion in People v. Manuel has been described by some as a landmark decision on medical marijuana litigation in the State of Michigan. If you or someone you know has been accused of violating the Michigan medical marijuana laws, contact the Peter J. Johnson Law Office, PLLC, a leading drug crimes attorney in Cass County.

On May 14, 2014, Michigan State Police conducted a warranted search of the home of Iskandar Manuel. At the time of the search, Manuel was purchasing marijuana from another man. Upon further examination of Manuel’s home, police discovered a marijuana grow operation in his basement. Manuel was charged with the following offenses: delivering or manufacturing 20 or more, but not less than 200 marijuana plants; possessing marijuana with intent to deliver; maintaining a drug house; and possessing a firearm during the commission of a felony.

4 of the MMMA allows a defendant to “claim entitlement to immunity for any or all charged offenses” if the defendant sufficiently proves that he or she,” as stated in People v. Hartwick, “(1) was issued and possessed a valid registry identification card, (2) complied with the requisite volume limitations of § 4(a) and § 4(b), (3) stored any marijuana plants in an enclosed, locked facility, and (4) engaged in the medical use of marijuana.” As Manuel was in possession of a valid registry identification card, stored his marijuana plants in his basement behind a locked door, and was understood to be engaged in the medical use of marijuana, People v. Manuel turned on whether Manuel exceeded the MMMA’s volume limits, those which restrict a primary caregiver or qualifying patient to a certain number of marijuana plants and a specified amount of usable marijuana. As a qualifying patient and primary caregiver for five patients, the MMMA would allow Manuel to cultivate up to 72 marijuana plants and to possess up to 15 ounces (or approximately 425.25 grams) of usable marijuana. Additionally, as Manuel was in possession of only 71 marijuana plants, he was in compliance with the cultivation limit; the question remained, however, whether the same followed for MMMA volume limits.

In its definition of “usable” marijuana, the Court of Appeals referred to People v. Randall, an unpublished decision in which “dried” marijuana—marijuana considered to be in its complete or final state—is distinguished from “drying” marijuana—marijuana considered to be in an incomplete form. Thus, in its decision, the Court of Appeals defined “usable marijuana” as that which is “dried.” When the marijuana found in Manuel’s basement was first weighed, it measured 1,195 grams; however, when it was re-weighed, approximately a month and a half later, it measured 1,068 grams. Expert testimony offered by Manuel’s defense explained the disparity between the two weights—that of 127 grams—as caused by his marijuana being in “various states of drying” and therefore, not usable under the MMMA. The Court of Appeals accepted the explanation and dismissed all charges against Manuel.

The Court of Appeal’s decision in People v. Manuel has been cited as providing necessary clarity to the MMMA that ensures that medical marijuana patients and caregivers are not at risk to possible felony charges. As Michigan medical marijuana caselaw continues to evolve, it is important to understand those legal complexities surrounding this unique area of law. If you or someone you know has been charged with a violation of the Michigan Medical Marihuana Act, contact the Peter J. Johnson Law Office, PLLC, a leading drug crimes attorney in Cass County, at 269.982.1100 or visit www.AttorneyPeterJohnson.com.

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criminal defense attorney in Van Buren County

New Case Clarifies Relationship Between Conduct and Restitution Awards

criminal defense attorney in Van Buren County

A recent opinion issued by the Michigan Court of Appeals has clarified the standard governing the relationship between a criminal offense and the restitution the defendant must provide. If you or someone you know has been accused of a criminal offense that involves restitution, contact the Peter J. Johnson Law Office, PLLC, a leading criminal defense attorney in Van Buren County.

Restitution, a requirement for a convicted defendant to reimburse his or her victim for their losses is an issue in many, if not most, criminal cases. Appellate cases involving restitution have provided insight into the nature and extent of restitution and the evidentiary standards for establishing restitution. However, in Michigan and across the United States, most criminal cases are settled by plea agreements, not trials, and convictions based on such agreements often lead to difficulties in establishing restitution awards. For example, during plea negotiations, the prosecution will often agree to dismiss certain charges against the defendant or to recommend a particular sentence in exchange for that defendant’s guilty plea to another offense, along with his or her agreement to provide restitution to the victim.

In People v Bryant, a recent Michigan Court of Appeals decision, the defendant was originally charged with several offenses, including Home Invasion in the Second Degree and Possession of a Firearm During the Commission of a Felony (“Felony-Firearm”). The charges stemmed from a break-in involving the defendant, and surveillance footage of the victim’s home showed the defendant leaving with several stolen items, including two guns. The defendant eventually reached a plea agreement with the prosecution, under which the prosecution agreed to a five-year sentence and to dismiss the Home Invasion charge, in exchange for the defendant’s guilty plea to the Felony-Firearm charge, and his agreement to pay $1,000 in restitution to the victim as reimbursement for her insurance deductible. The defendant pled guilty to the Felony-Firearm offense, and in his plea he admitted to stealing only one of the two guns and did not mention any of the other stolen items. Soon after, the defendant file a motion to correct an invalid sentence, arguing that the trial court should only have ordered restitution for the loss from the theft of a single gun, because that was the extent of what he confessed to doing. The prosecution countered by noting that the defendant had originally been charged with home invasion, and that there was ample evidence available to the court to substantiate the other items the defendant had stolen.

In issuing its opinion, the Michigan Court of Appeals quoted from McKinley, a Michigan Supreme Court case. In People v McKinley, the defendant was ordered to pay a restitution award that was based solely on his uncharged conduct (conduct to which he did not admit and which was not proven in court). The Court held that there must be a direct, causal relationship between a defendant’s conduct and the amount of restitution to be awarded, and that any course of conduct that does not give rise to a conviction may not be relied upon to assess restitution.

Ultimately, the Court of Appeals found substantial factual differences between McKinley and the present case, and it ruled against the defendant in Bryant. Unlike the defendant in McKinley, the defendant herein was not being ordered to pay restitution based solely on uncharged conduct because an essential element of the Felony-Firearm charge was that the firearm must have been obtained or brandished during the commission of a felony. In other words, when he pled guilty to the Felony-Firearm charge, the defendant entitled the Court to consider evidence regarding the underlying Home Invasion charge because the two were “part and parcel”. Furthermore, the Court noted that the laws governing restitution awards specifically permit the presiding court to consider the contents of sentencing reports prepared prior to sentencing, and the defendant’s report clearly indicated that other items had been stolen.

Retaining a lawyer who understands the intricacies of restitution can make a critical difference in reaching a livable settlement with the prosecution. If you or someone you know has been accused of a criminal offense that involves restitution, contact the Peter J. Johnson Law Office, PLLC, a leading criminal defense attorney in Van Buren County at 269.982.1100 or visit http://www.AttorneyPeterJohnson.com

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drug crimes attorney in Cass County

New Decision Offers Guidance on What Constitutes “Plant” Under Medical Marihuana

drug crimes attorney in Cass County
In a recent decision, the Michigan Court of Appeals gave greater clarity to the definition of a plant under the Michigan Medical Marihuana Act. If you or someone you know has been charged with a violation of the Michigan Medical Marihuana Act, contact the Peter J. Johnson Law Office, PLLC, a leading drug crimes attorney in Cass County.

Under the provision of the Michigan Medical Marihuana Act (MMMA), registered “patients” are permitted to either grow their own marijuana plants or to designate another person as a “caretaker” who is permitted to grow the plants for them. In either circumstance, the person growing the plants is subject to strict limits regarding the number of plants that they can maintain at a time – a patient cannot maintain more than 12 marijuana plants for their personal use and a caregiver is only permitted to maintain 12 plants per patient and cannot assist more than five patients with growing their medical marijuana.

If a patient or caregiver is found to be in possession of too many plants, he or she is in violation of the Act, and is subject to criminal penalties. However, the MMMA does not provide an exact definition of what constitutes a “plant”, and this lack of clarity has led to significant confusion regarding the status of “clones”. A clone is a term used to refer to a smaller cutting from a marijuana plant and that, given the proper care and conditions, can eventually become a viable marijuana plant. The practice of “cloning” a marijuana plant is quite useful for caregivers growing marijuana plants for their patients because it allows them to skip the germination period that is often required when starting a plant and because it allows them to quickly propagate especially desirable or healthy plants.

In People v Ventura, a recent Michigan Court of Appeals decision, the court considered for the first time whether such clones can be considered “plants” under the MMMA. In that case, the defendant was registered under the Act as both a patient and a caregiver for another patient, meaning that he was entitled to possess up to 24 plants. However, when police searched his house, they discovered that in addition to 21 marijuana plants, he possessed 22 clones that had been placed in “grow material”. In its decision, the Michigan Court of Appeals first noted that the MMMA did not explicitly provide a definition of a “plant”. It then sought to determine the ordinary use of the word by reviewing the dictionary definition of “plant,” but found that this definition provided little, if any, clarity.

Because the Court could not find any previous Michigan cases that spoke to this issue, it sought guidance from judicial opinions rendered in other jurisdictions. Ultimately it settled on a relatively simple test that it found in a federal case, United States v. Edge. Edge involved the sentencing of a federal defendant based on the number of marijuana plants he possessed. In Edge, the Sixth Circuit Court of Appeals concluded that a “marijuana cutting” (such as a clone), is a plant for federal sentencing purposes if there is readily observable evidence of root formation. In support of this test, the Sixth Circuit Court of Appeals stated that such a definition is in sync with the common use of the word “plant” and also found that the test would provide clarity because of how easy it was to apply.

Ultimately these justifications also proved compelling to the Michigan Court of Appeals, which adopted the Edge test. Applying this test to the facts in Ventura, the Court noted that the plants police had seized from the defendant had “hair-like fibers growing off the main root, with those fibers visible to the naked eye”. Because these root structures were “readily observable”, the Court found that the defendant possessed 43 marijuana plants and upheld his conviction.

Understanding the complex interactions between criminal law and the Michigan Medical Marihuana Act is a difficult task that requires specialized knowledge and constant attention to detail. If you or someone you know has been charged with a violation of the Michigan Medical Marihuana Act, contact the Peter J. Johnson Law Office, PLLC, a leading drug crimes attorney in Cass County at 269.982.1100 or visit http://www.AttorneyPeterJohnson.com.

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Prenuptial Agreements

New Case Limits Enforceability of Prenuptial Agreements

Prenuptial Agreements
In a recent decision, the Michigan Court of Appeals declined to enforce portions of a prenuptial agreement limiting the discretion of the trial court to intervene in property distribution between the parties. If you or someone you know are considering entering into a prenuptial agreement or are trying to contest the validity of such an agreement, contact the Peter J. Johnson Law Office, PLLC, a leading family law attorney in Berrien County.

In Michigan, it is increasingly common for couples with significant assets to enter into prenuptial agreements, also known as antenuptial agreements or premarital agreements. Such agreements can cover a broad array of topics, but often they are used to ensure that one party retains certain property during divorce proceedings. While Michigan courts generally enforce prenuptial agreements controlling property divisions, they are less willing to do so when the agreement is inherently unfair or when there has been an unforeseeable change in circumstances after the marriage that makes enforcement unjust. Courts have also routinely refused to enforce other kinds of prenuptial provisions, such as ones which seek to limit the court’s role in determining custody or child support for children born during the marriage because Michigan law requires the court to consider the best interests of those children in determining those issues.

Recently, courts have focused on the ability of prenuptial agreements to limit a court’s discretion to adjust imbalanced property settlements. Under Michigan law, if a presiding court finds that the division of marital property provides insufficient support for one of the parties, it can order the other party to give up a larger share from the property acquired during the marriage. In extremely imbalanced cases, the court can also require the more secure party to give up his or her separate property, including property acquired before the marriage.

In Allard, a recent Michigan Court of Appeals decision, the parties entered into a prenuptial agreement that explicitly precluded division of any separate property owned by the parties before the marriage, and imposed a mandatory 50/50 split of any property acquired after the marriage. The prenuptial agreement also went a step farther by including provisions that limited the trial court’s ability to correct imbalanced property divisions in the manner described above. As a whole, this prenuptial agreement greatly disadvantaged the Defendant in Allard, because it resulted in a much smaller property division than might otherwise have received and it limited the court’s ability to adjust this division in her favor. Nevertheless, the trial court enforced the agreement, noting that the agreement was not unconscionable and that there had not been an unforeseeable change in the circumstances of the parties since the agreement was signed.

However, the Michigan Court of Appeals later overruled this decision. Compared to the trial court, the Michigan Court of Appeals focused less on the limits of what the parties were allowed to agree to and more on the inherent powers of the presiding judge in divorce cases. The fatal flaw in the prenuptial agreement was its interference with judicial discretion; the parties are free to agree to terms that may prove disadvantageous, but they cannot prohibit the court from reviewing and possibly correcting the result to protect one of the parties.

In a statement after the decision, the attorney for the Plaintiff issued a warning to people who might be contemplating getting a prenuptial agreement. He compared writing a prenuptial agreement to planting a bomb that won’t explode until years or decades have passed, and stated it was vital to retain an attorney who understands the intricacies of such agreements, not an attorney who merely “dabbles” in writing them. If you or someone you know are considering entering into a prenuptial agreement or are trying to contest the validity of such an agreement, contact the Peter J. Johnson Law Office, PLLC, a leading family law attorney in Berrien County today at 269.982.1100 or visit www.AttorneyPeterJohnson.com for further information.

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