The Ultimate Failure

[LongHairBri]

paypal donations can be forwarded thru me. pm for details

[purklize]

Please read the whole thread, don't ask him (or his wife) to retell the story.

thank you

 

His charges are in the thread, but nowhere can I find how his medical defense got tossed... I've been reading other threads on this and still can't figure out exactly what happened. I feel it's important it's clearly stated - did they count the full weight of his medibles, putting him over the limit? Was a composting plant counted as weight? A dead rootball counted as a plant?

[Croppled1]

His charges are in the thread, but nowhere can I find how his medical defense got tossed... I've been reading other threads on this and still can't figure out exactly what happened. I feel it's important it's clearly stated - did they count the full weight of his medibles, putting him over the limit? Was a composting plant counted as weight? A dead root ball counted as a plant?

 

They do not recognize it . They just ignore it and expert witnesses cost money . One cannabis Doctor stated he required $5000 per court appearance . The State has their experts on retainer or in house . They have unlimited money to use at their discretion and can cancel appearance after appearance costing the defendant thousands of dollars . My prayers probably don't count for much but I will say some .

Edited December 6, 2011 by Croppled1

[purklize]

There had to have been some fight over the medical defense, othrewise this would be an easy appeal, even the COA recognizes a narrow interpretation of the law...

 

Can't believe that doc asked for $5000 per court appearance... that is just GREEDY beyond belief. Way to look out for your patients, doc. :thumbsd:

[petoskeystoned]

Guess whos back, back in town.... 16 days and you will see me again! God bless you all!

[petoskeystoned]

Thankfully, the Court of Appeals has agreed to hear my case in the spring. Wish us well, we have a good chance!

[free country 420]

Awesome bro good luck

 

[The Digital Nomad]

wow right on petoskystoned!

[petoskeystoned]

I am happy to announce that the Michigan Appellate Court will be hearing my case on Feb 5th. Hopefully all will go well. Barbi and I are well friends, and we continue to support you all the best we are able under the circumstances. God bless.

[knucklehead bob]

[SFC]

^^Ditto

[t-pain]

thats awesome PS.

i'm sure the CoA will just say you were denied your sec8 defense and throw you back down to lower court.

you ready to do court again?

[petoskeystoned]

Actually, it is the same case, however the issue at hand is only in regards to the unsigned, undated, therefore illegal warrants that were used in the raid. The warrant was never issued. Allthough we all know I was completely within my rights and the law, I will take any win I can get.

[knucklehead bob]

Actually, it is the same case, however the issue at hand is only in regards to the unsigned, undated, therefore illegal warrants that were used in the raid. The warrant was never issued. Allthough we all know I was completely within my rights and the law, I will take any win I can get.

That sounds vaguely familiar with a case in Oakland County . The Judge , apparently , thinks that it is O K to get a Warrant after they bash your door down and they find out you are not on probation .

 

 

 

 

Again with the time . Here it is not even 12:36 yet and this post is up at 12:forty something .

Edited January 22, 2013 by knucklehead bob

[bobandtorey]

Actually, it is the same case, however the issue at hand is only in regards to the unsigned, undated, therefore illegal warrants that were used in the raid. The warrant was never issued. Allthough we all know I was completely within my rights and the law, I will take any win I can get.

 

Good luck Richard i think you have a good point on the warrant part they didn't have one at our raid either

if you don't mind how much is this costing you $ and do you have a Lawyer?

[petoskeystoned]

My appellate defense lawer is the State Appellate Defenders Office in Detroit. There never has been an issued warrant. Before, or after the raid. just a piece of paper. It is costing me alot, of course.

[bobandtorey]

Maybe you can have some kind of support rally and we could take up some $$ here to help you

Like a fund raiser

[petoskeystoned]

http://publicdocs.courts.mi.gov:81/opinions/final/coa/20130207_c310561_33_310561.opn.pdf

 

Looks like warrants are no longer needed in this state.

[petoskeystoned]

Apparently we are off to the Michigan Supreme Court

[ilynnboy]

Lost on appeal?

Can you say what happened?,

And the opinion/ruling of the Judge?

 

Edited March 12, 2013 by ilynnboy

[maxmax]

STATE OF MICHIGAN COURT OF APPEALS

 

 

PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee,

v

RICHARD ALLEN NEILL,

Defendant-Appellant.

Before: JANSEN, P.J., and WHITBECK and BORRELLO, JJ. PER CURIAM.

 

UNPUBLISHED February 7, 2013

No. 310561

Emmet Circuit Court LC No. 10-003317-FH

 

 

Defendant Richard Neill appeals by leave granted his conviction, following a conditional guilty plea, of maintaining a drug house.1 The trial court sentenced Neill to serve one year of imprisonment and five years of probation. We affirm the trial court’s decision to deny Neill’s motion to suppress the evidence found in Neill’s house pursuant to an unsigned search warrant.

I. FACTS

On June 17, 2010, Detective David Schultz presented an affidavit of probable cause to search Neill’s house to Magistrate Larry Burgess. According to Detective Schultz, Magistrate Burgess reviewed the paperwork carefully, swore him, affirmed his oath, and then gave him a pen to sign the affidavit. Magistrate Burgess has issued other search warrants to Detective Schultz. When he denies a search warrant, he immediately hands the probable cause affidavit back to Detective Schultz with an explanation. Detective Schultz saw Magistrate Burgess sign paperwork, and then followed him to the copy room, where the magistrate made copies.

Magistrate Burgess testified at the suppression hearing that the probable cause affidavit contained his signature, and that he would not have signed it without first determining that probable cause existed to issue the search warrant. He testified that he logs every search warrant that the court issues and that he logged the search warrant in the warrant book as issued. Magistrate Burgess testified that he forgot to sign the warrant, but that he did not realize it until he attempted to file the return search warrant that he received back from Detective Schultz.

1 MCL 333.7405(1)(d).

 

 

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Detective Schultz testified that he reviewed the search warrant with other officers when he briefed them, but that the other officers did not see the search warrant before the search. He testified that the search warrant was on a table in the house while they searched it. Detective Schultz testified that he did not notice that Magistrate Burgess had not signed the warrant until officers secured the house and he began to go over the search warrant with Neill’s sister. He testified that at that point, officers were already searching the house.

II. VALIDITY OF THE WARRANT A. STANDARD OF REVIEW

This Court reviews for clear error the trial court’s findings of fact supporting a motion to suppress.2 A decision is clearly erroneous if evidence supports the decision, but we are convinced that the trial court made a mistake.3 We review de novo the trial court’s ultimate decision on the motion.4

B. LEGAL STANDARDS

Both the United States and Michigan constitutions “guarantee the right of persons to be secure against unreasonable searches and seizures.”5 To comply with this requirement, police officers generally must have a warrant to conduct a search.6 A magistrate may only issue a search warrant if there is probable cause to issue the warrant: that is, “a ‘substantial basis’ for inferring a ‘fair probability’ that contraband or evidence of a crime will be found in a particular place.”7 Probable cause may exist on the basis of facts contained in an affidavit.8

The trial court must presume that a search warrant is invalid if the accompanying affidavit is unsigned, but the prosecution may rebut that presumption by showing that the affiant swore the affidavit to a Magistrate under oath.9 Similarly, the trial court must presume that an unsigned warrant is invalid, but the prosecution may rebut the presumption by showing

2 People v Mitchell, 428 Mich 364, 369; 408 NW2d 798 (1987); People v Williams, 472 Mich 308, 313; 696 NW2d 636 (2005).

3 People v Mullen, 282 Mich App 14, 22; 762 NW2d 170 (2008). 4 Williams, 472 Mich at 313.

5 People v Kazmierczak, 461 Mich 411, 417; 605 NW2d 667 (2000); see US Const, Am IV; also see Const 1963, art 1, § 11.

6 Id.

7 Id. at 417-418, quoting People v Russo, 439 Mich 584, 604; 487 NW2d 698 (1992).

8 Mitchell, 428 Mich at 369; People v Waclawski, 286 Mich App 634, 698; 780 NW2d 321 (2009).

9 Mitchell, 428 Mich at 369.

 

 

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“evidence that, in fact, the magistrate or judge did make a determination that the search was warranted and did intend to issue the warrant before the search.”10

C. APPLYING THE STANDARDS

We conclude that the trial court properly declined Neill’s motion to suppress the evidence found pursuant to the search because the search warrant was validly issued. Neill argues that a search pursuant to an unsigned warrant is unconstitutional because the warrant is not valid. Neill relies on this Court’s decisions in Hentkowski11 and Locklear.12 But these decisions are not binding precedent of this Court.13 In binding precedent, this Court has expressly rejected the conclusions in Hentkowski and Locklear,14 and held that an unsigned warrant is presumed to be invalid, but that the prosecution can rebut that presumption:

[T]he fact that a search warrant has not been signed by a magistrate or judge presents a presumption that the warrant is invalid. However, this presumption may be rebutted with evidence that, in fact, the magistrate or judge did make a determination that the search was warranted and did intend to issue the warrant before the search.[15]

A warrant’s validity rests on the magistrate’s probable cause determination, after which signing the warrant is a “purely ministerial task.”16 Indeed, after determining that probable cause exists to support a search warrant, a magistrate does not have the discretion to decline to issue a warrant.17

Neill also argues that Barkley is factually distinguishable from this case. In Barkley, the magistrate signed two copies of the search warrant, but failed to sign a third copy.18 But that was not the basis of our decision. This Court held that a search warrant is valid if the magistrate: (1) determined that probable cause supported the search, and (2) intended to issue the warrant.19 We considered the fact that the magistrate signed other copies of the search warrant to be evidence that “amply rebutted” the presumption that the unsigned warrant was invalid: it was not

10 People v Barkley, 225 Mich App 539, 545; 571 NW2d 561 (1997).

11 People v Hentkowski, 154 Mich App 171; 397 NW2d 255 (1986).

12 People v Locklear, 177 Mich App 331; 441 NW2d 73 (1989).

13 MCR 7.215(J)(1); see People v Cooke, 194 Mich App 534, 537; 487 NW2d 497 (1992). 14 Barkley, 225 Mich App at 542-545.

15 Id. at 545.

16 Id. at 545 n 4, quoting United States v Turner, 558 F2d 46, 50 (CA 2, 1977). 17 MCL 780.651(1); Mitchell, 428 Mich at 368.

18 Barkley, 225 Mich App at 541.

19 Id. at 546.

 

 

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dispositive to the holding in the case.20 Thus, the question is not whether Magistrate Burgess signed any copy of a search warrant, it is whether he determined that probable cause supported the search and intended to issue a search warrant.

We conclude that the trial court’s findings that Magistrate Burgess determined the search was valid and that he intended to issue the warrant were not clearly erroneous. Ample evidence supported the trial court’s finding that Magistrate Burgess determined probable cause warranted the search. Both Magistrate Burgess and Detective Schultz signed the probable cause affidavit. Both testified that the magistrate would not have let the detective sign the affidavit if he did not believe that probable cause supported it. And Magistrate Burgess testified that he would not have signed the affidavit himself before determining that probable cause warranted the search.

The evidence also supported the trial court’s finding that Magistrate Burgess intended to issue the warrant. Magistrate Burgess testified that he logged search warrant as issued, which he would not have done if he did not intend to issue the warrant. We are not convinced that the trial court made a mistake when it made these findings. We conclude that the trial court properly denied Neill’s motion to suppress the evidence because the search warrant was valid under binding Michigan caselaw.

Neill also argues that the “good faith” exception to the exclusionary rule does not apply in this case because it does not excuse the absence of a search warrant. But because this exception would only apply if we determined that the warrant was invalid,21 we need not address this argument.

We affirm.

[thanks2]

It seems that the breaking of the link from section 8 to section 4 would also be an issue. I do not remember all the facts, but if I remember right this case would have been an easy win with section 8, but that defense was blocked because of a minor issue with section 4?

[petoskeystoned]

http://helpmesavethefourth.wordpress.com/2013/04/24/michigan-warrant-requirements-may-no-longer-need-signature-date-or-stamp/

[petoskeystoned]

oops. that was the link for my Wordpress blog,   helpmesavethefourth.wordpress.com. 

[petoskeystoned]

     Hi everyone, hope all is well. Barbi and I are doing good. As you know, I lost my fight in the COA, and am currently awaiting on the Supreme Court to decide if they will here the case. 

     Now, I realize that unsigned warrants and medical marijuana are very seprate fights, but I just want everyone to be aware of whats going on. Unsigned documents being valid because someone, anyone, says they "intended to" is unacceptable in any state, and many have decided just that. 

     When people in society (and even more so patients and caregivers that are sick, or could easily be targeted by theives) are approached at their home by anyone with anything, cable tv, Fed-Ex, Social Services, or 7 gunned masked raid officers, twice, you would like to know that they are who they say they are that they are at the correct house...

     My case has become two fights. The rights of patients and caregivers, and that of privacy, security and common sense. Please, please, at least read and support these efforts. 

     All though my case is no longer about marijuana technically, it affects every single citizen in the State of MI, and your 4th and 14th rights.

     Barbi and hold our heads up everyday. We know we did nothing wrong, and even when some of the questions regarding my case were grey then, the court opinions since then have all been in our favor. I plead guilty on the condition that I could appeal the unsigned warrant, to end the extreme and horrible treatment by the road patrol here to me and my family and frankly, to just get it over with. My justification? A misdemeanor and my sanity).

     And besides, there's always the invalid search warrant, that's a given. Right?"

     So basically all I am saying is please keep in touch, support the effort if not for me for yourself, and to not interfere with the MMMA, just follow, comment and share my blog with patients and family alike. I have no idea what I am doing, but learning fast our Civil Rights are on the line !

 

http://petoskeystoned.wordpress.com/