A Good Read- Goupil Ruling - Constitutional Rights Violated, Evidence Suppressed

[Michael Komorn]

STATE OF MICHIGAN

IN THE CIRCUIT COURT FOR THE COUNTY OF SHIAWASSEE

 

 

 

 

 

 

PEOPLE OF THE STATE OF MICHIGAN,

 

 

 

V FILE NO. 11-2145-FH

 

 

 

MICHAEL BASIL GOUPIL,

 

 

 

DEFENDANT.

 

____________________________________/

 

 

 

PEOPLE OF THE STATE OF MICHIGAN,

 

 

 

V FILE NO. 11-2146-FH

 

 

 

SHYANNE MARIE GOUPIL,

 

 

 

DEFENDANT.

 

____________________________________/

 

 

 

MOTION TO SUPPRESS

BEFORE THE HONORABLE GERALD D. LOSTRACCO

35^TH CIRCUIT JUDGE

CORUNNA, MICHIGAN – MONDAY, NOVEMBER 7, 2011

THE COURT: All right. Thanks.

 

MR. KOMORN: If I may just, I want to argue one other thing just, just briefly, Your Honor.

 

There’s a presumption in Section 4, also. There’s a presumption--

 

THE COURT: You, you don’t need to argue that --

 

MR. KOMORN: Okay.

 

THE COURT: -- because I think this, that we could followup on the argument and the debate that Trooper Barker and Mr. Goupil had at the scene relative to differing interpretations of the Medical Marijuana Act;that’s not really the issue. The issues whether or not there was lawful consent. So I think that maybe we’re getting a little bit off track with the, the rest of the subject matter of the Medical Marijuana Act itself.

 

We know that there was a traffic stop and that in and of itself is not in question.

 

The traffic stop,apparently, was for a failure to use a signal to turn and the Defendant stated he knew there were police in the area because of the testimony, what happened in downtown Lennon when he was driving by the police stop there.

 

So we heard the witnesses, Mr. McGlashen from T.V. 12, the cameraman, Trooper Barker, Mr.Stephen Woodman, and then Defendant, Michael Goupil who all testified. And the burden is, I think it’s accurate, is on the prosecution to prove by clear and positive evidence that the consent was unequivocal and specific, freely, intelligently given by the Defendant, Michael Goupil.

 

The testimony of Trooper Barker is, is this traffic stop was January 6, 2010, there was a film crew along for the ride, and the cameraman, again, Mr. McGlashen said that he was in a car with Trooper Barker, hooked up with the Flint Area Narcotics Unit because they were doing a story or a follow-up story regarding M-13, that corridor known as a drug corridor; so that was the stated interest of the T.V. coverage which, apparently, thereafter resulted in some story on, on television news.

 

Trooper Barker says he was working with the F.A.N.G. Team, talked, talked about the traffic stop, who was in the vehicle - Mr. Goupil, two passengers besides him, besides Mr.Goupil, the driver - one of the passengers, the front seat passenger, Woodman testified this morning. Trooper Barker testified that he could smell marijuana and then talked to the driver who says,Mr. Goupil, that is, that he is a caregiver; gave Trooper Barker three cards.

 

So that part is consistent relative to the cards and the discussion relative to a caregiver.

 

There was questioning about the number of plants at the Goupil home. This stop was some distance from the Goupil home and according to Trooper Barker Defendant says, quote, “I have forty-eight (48) plants,” he had a pipe in his pocket and marijuana was found in the driver’s seat. Defendant says it’s his; says his wife has more cards at home. Again, again,according to the Barker testimony.

 

According to Barker the Defendant consented to a search of the home, leads the police officers, all of them, in several vehicles, back to his home to conduct a search. The Trooper says that Defendant was never in custody; was free to go.

 

And then, as stated, we have testimony of Mark McGlashen, the cameraman. He also says, says that also Bill Harris reported from the T.V. station, was there someplace for coverage.

 

That, and that, and that,and to be clear, the video that the Court was shown, I think it was ten (10)minutes or so, according to Mr. McGlashen did not, was not complete, it did not cover the entirety of what went on.

 

But he testified that there was this conversation between the driver, Goupil and the Trooper that McGlashen could overhear. He heard the Trooper say I could smell marijuana and asked Defendant if he had contact with marijuana. And this conversation, then he overhear about Defendant saying, I’m, I’m a grower, presented cards, pipe,according to McGlashen, then Defendant says something to the effect, you can’arrest me, I have cards; at which point, I think McGlashen said a pipe fellout. And then asked, Defendant asked to step out of the vehicle.

 

There was a conversation,according McGlashen about the number of plants at home, that the Defendant had at the house.

 

He estimated that the entire traffic stop was fifteen (15) to twenty (20) minutes.

 

He said Defendant was not in handcuffs and according to cameraman McGlashen he did not think Defendant was free to leave from what he had observed and overheard.

 

The, some of the, some of the case law that is cited here is People versus Bloxson, B-L-O-X-S-O-N, it’sat 205 Michigan Appeals, page 236, and that’s decided in 1994 by the Court of Appeals. And this was, by the way, a two to one decision, with one descent. And the facts in that case – well, first of all, the charge was possession with intent to deliver less than fifty grams (50 gr) of cocaine. And this, I think was a police investigation,the drug interdiction unit traveling to various public transportation stations to, quote, “Forth transport a narcotic and weapons on public carriers.” So there was, I think some indication of training and drug interdiction to observe certain characteristics.

 

But this court said that,page 244, that, quote, “We believe the police conduct in this case would convey to a reasonable person that he was not at liberty to ignore the police presence and go about his business.” They cite to the Bostick, Bostick, B-O-S-T-I-C-K, case, that there they were, defendant failed, the detective failed to advise defendant that he had the right to refuse consent.

 

In this case if we look at all of the evidence, you know, that’s been introduced in this hearing, that the so far – not so far, but, period, that there was marijuana in the vehicle. Defendant had caregiver cards,but no other card on his person. There was a - what I think is not even in dispute - there was a legitimate traffic stop here.

 

It’s also pretty clear that the, the scene as, as shown on the, according to the Defendant, and really according to the officer was pretty confrontational from the start. The officer got into an argument, or discussion relative to the Medical Marijuana Act, he had the copy of it with him, and that, to a large degree, the confrontational nature of this, this conversation was substantiated by the video.

 

The, I think that if we look at the video my impression was that there was a certain degree of posturing and maybe performance by both the officer, as well as the Defendant,are both knowing that they were being videotaped.

 

The, there were several officers involved and the Defendant has his license, his cell phone taken, and then ends up with a caravan of police vehicles going back to his home where the search of the home occurred; purportedly, pursuant to consent.

 

On the facts and on the testimony, and, and looking at this subjectively on the totality of what’presented here, the testimony, the evidence, it’s, it’s clear that a reasonable person would not feel free to consent in the environment that the Defendant found himself. And if there’s,obviously, a difference in the testimony between the Defendant and the officer,and even to a large extent with Mr. Woodman’s testimony, if we look to what I Think can be categorized, or characterized as a neutral, if there’s a neutral,the cameraman McGlashen, again, his impression was that the Defendant was not free to leave. The record, I think, it’pretty clear in that regard.

 

So I’ll grant the motion- I think that that’s the only logical conclusion after listening to the evidence; so I’ll grant the motion, defense motion to suppress the evidence,and that applies, obviously, in both cases.

 

 

 

 

 

 

 

 

[Michael Komorn]

Here is some of the backdrop to the story

[mrd]

I am happy that the defendant won but I think he really should see the ACLU DVD (I think it is on u tube) called "Busted" . Carrying a pipe loosely and having mj visible in the car just encourages the police. Then they fell they have probable cause etc etc. Watch the video, stay safe.

[maxmax]

do they have to go back to court for all the plants? or is that also over?

[Michael Komorn]

1327710994[/url]' post='357368']

do they have to go back to court for all the plants? or is that also over?

 

The plant case was dismissed. The case was remanded back to the District Court and he was charged with possession of mj, despite having three 3, caregiver cards.