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State Supreme Court Settles Dispute Over Pot Bust


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http://dailytribune.com/articles/2011/07/21/news/doc4e28cbed59902229018399.txt

 

ROYAL OAK — In May 2007, a firefighter found 48 marijuana plants in the basement of a townhouse next door to a woman who called 911 about an apparent water leak near an electrical panel in a wall shared by the two units.

 

Should the man be tried for manufacturing marijuana with the intent to deliver?

 

The Michigan Supreme Court said yes in a 5-2 decision earlier this month. The ruling reverses two lower court decisions to dismiss the charges against Mark Slaughter, 37, who wasn’t home when firefighters broke a window of his former townhouse to investigate his neighbor’s call.

 

Defense attorney Randall Upshaw is now looking for a co-counsel to appeal Slaughter’s case with him to the U.S. Supreme Court.

 

“It’s expensive and I need someone to share the financial burden,” the Lathrup Village lawyer said. “I’m pushing this because it’s wrong to go into a person’s house without serious cause. I could care less about the marijuana. That’s really a probational offense. I can see people using this case to violate other peoples’ constitutional rights.”

 

Upshaw said the lower courts got it right when they ruled the firefighter was first obligated to try to remedy the problem without entering the defendant’s home on the 3200 block of Coolidge Highway. Those judges contend the Fourth Amendment protected Slaughter against the firefighter entering his private residence without a warrant.

 

However, the state’s highest court said the “community caretaker exception” to the Fourth Amendment, which guarantees the right to be free from unreasonable searches and seizures, applies because the firefighter was responding to an emergency situation that threatened life and property.

 

“In this case, the firefighter acted in good faith,” the ruling says. “There was no indication that his entry into defendant’s residence was pretextual, and only upon entering the defendant’s basement to shut off the water did the firefighter see what appeared to be contraband in plain view.

 

“The report of water flowing into the basement from the other side of defendant’s wall, which contained an electrical panel, constituted specific and articulable facts leading the firefighter to the conclusion that imminent action was necessary to abate the threat to persons or property inside the residence.”

 

The state Supreme Court remanded the case back to Oakland County Circuit Court for an order denying a defense motion to suppress the evidence against Slaughter. Charges against Slaughter could be reinstated.

 

“We’ll know what’s going to happen in a few weeks,” Upshaw said.

 

He said the real legal issue is whether the community caretaker exception justified entry into his client’s townhouse when firefighters didn’t have substantiated evidence that water was running down the wall or in between the walls.

 

“They didn’t go into her unit and feel for dampness or moisture on her walls or look for water on the floor or turn off water and electricity to her unit,” Upshaw said. “How reasonable is it for firefighters to bypass the source of the complaint to protect property not in danger at all?

 

The Fourth Amendment affords a home a heightened degree of protection from intrusion. Both public policy and well-established law frown on the actions of the firemen in this case.”

 

The Michigan Supreme Court opinion says the neighbor, Kathleen Tunner, saw water running down her basement wall and over her electrical box and that she heard water flowing behind the wall adjoining the townhouses.

 

Tunner knocked on Slaughter’s door but he wasn’t home. She then called the condo management company in an attempt to find him. When she couldn’t, she called 911. The city dispatched several firefighters, including then Lt. Michael Schunck, who is now the fire inspector. One firefighter broke a window of Slaughter’s townhouse and climbed through to let Schunck in the front door to check for running water and assess whether other steps needed to be taken to prevent a fire.

 

The townhouses are adjoined in a single structure with 12 units. Although it was possible to shut off water to the entire complex from outside, the general practice is to shut off an individual residence. Schunck went to the basement where he saw grow lights and dozens of plants that appeared to be marijuana. He called police.

 

The police obtained a search warrant. Officers seized the 48 plants and lights and the watering system, books on marijuana horticulture, packaging material and other drug paraphernalia.

 

Slaughter was charged with manufacturing with the intent to deliver more than 20 but fewer than 200 marijuana plants.

 

Upshaw filed a motion to suppress the evidence, which was granted by Oakland County Circuit Judge Rae Lee Chabot. The judge concluded Schunck “did not attempt to hear or see for himself what was causing the problem (that led Turner to dial 911), nor did he attempt to verify the existence of running water in the wall prior to entering the defendant’s home.”

 

The Michigan Court of Appeals upheld the decision, saying the community caretaker provision can apply to searches performed by firefighters to abate a possible fire hazard, but in this case “firefighters were simply too quick to enter defendant’s unit and failed to investigate the complaint” before doing so.

 

The Oakland County Prosecutor’s Office appealed to the Michigan Supreme Court, which issued a July 1 opinion that the home entry was reasonable based on circumstances known to firefighters at the time.

 

“Their belief in the necessity of their intrusion need not be ‘ironclad’ only ‘reasonable,’” the ruling says. “Furthermore, courts must not engage in a ‘hindsight determination’ that an entry is unreasonable simply because no imminent hazard actually existed.”

 

Schunck didn’t see or hear any water before entering the townhouse but the state Supreme Court justices found he had no reason to disbelieve Tunner. He determined action was necessary to investigate the threat of an electrical fire and he went into the defendant’s townhouse to shut off the water from the basement.

 

The state’s highest court concluded Schunck acted reasonably, but they also pointed out the Fourth Amendment doesn’t give firefighters a blank check to enter and search private residences.

 

“The Fourth Amendment strikes a careful balance, as seen in this instant case, between a citizen’s reasonable expectations of privacy with his similarly reasonable expectations that emergency personnel will act swiftly to protect his residence from the threat to persons or property therein.”

 

Justices Michael F. Cavanagh and Marilyn J. Kelly dissented, writing the decision “extends the community caretaking exception to the Fourth Amendment warrant requirement beyond discernable limitation.”

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