Michigan Criminal Defense Lawyer Blog

Child Pornography Lawyer Explains When Police May Search Your Phone

Published on: August 10, 2021 | by Ryan Ballard

Americans value their privacy. It is considered a right. Americans especially value the right to privacy from government intrusions. The Constitution’s 4th Amendment requires probable cause for a warrant to search or seize a person’s belongings. This is also where we find our right to privacy.

Does the Right to Privacy Apply to Private Cell Phone Companies?

This Constitutional protection against unreasonable searches and seizures applies to governmental actions. But what about the actions of private companies? Can private companies search our stuff?

What Happens at a Michigan Implied Consent Hearing?

Published on: June 29, 2021 | by Patrick Barone

A Michigan implied consent hearing is an informal hearing where the officer that arrested you for drunk driving provides testimony to prove that you unreasonably refused a breath blood or urine test. Before we move on with a further discussion of the hearing, let’s review the concept of implied consent, and how it applies in a Michigan drunk driving case.

The Legal Fiction of Implied Consent

Both the Michigan and the United States Constitutions provide that the police can’t search you, your home or your car without a warrant. Thus, before the police may proceed with a search of your breath, blood or urine, they must first obtain a warrant. However, there are many exceptions to this warrant requirement and consent is one of them. This is where the legal fiction of implied consent comes into play.

How Sober Cannabis Users are Wrongfully Convicted of Intoxicated Driving

Published on: June 16, 2021 | by Patrick Barone

Police in Michigan continue to use unreliable chemical and field sobriety tests when investigating drivers suspected of using cannabis. This can lead to sober cannabis users being wrongfully convicted of intoxicated driving. This is because the tools used for decades to investigate drunk driving cases simply do not translate well to the investigation of drivers believed to be under the influence of marijuana.

These conclusions are drawn from a 2020 research study conducted by the National Institute of Justice. This federally funded research study resulted in the production of a final written overview which was subsequently submitted to the U.S. Department of Justice. The title of the overview is Differences in Cannabis Impairment and its Measurement Due to Route of Administration. (Hereafter “NIJ Study”).

What did the NIJ Study Conclude?

Can Police Search My Phone or Computer to Search for Child Pornography?

Published on: June 2, 2021 | by Ryan Ballard

To complete an investigation and, ultimately, file charges for child pornography, law enforcement will almost always attempt to seize and search the electronic devices they believe could contain illegal material. The way police gain access to these devices can be an important issue in child pornography cases (called Child Sexually Abusive Material in Michigan). There are three categories in which police can seize electronic devices to search for evidence of a crime: with consent, with a warrant, without a warrant or consent.

Consent

The easiest way for police to get access to phones and computers in a child pornography investigation is to get consent from the person they’re investigating. If police come to your home and ask to see your electronic devices without a warrant, you should respectfully decline and call the Michigan sex crimes lawyers at the Barone Defense Firm immediately.

Research Shows that False Memories in Sex Crimes Cases Can Lead to Wrongful Convictions

Published on: May 28, 2021 | by Patrick Barone

Charges for criminal sexual conduct cases, more commonly called sex crimes or sexual assault, are often based only on the memories of the complaining witness. This is especially true for sexual assault that allegedly took place when the adult victim was a child. In these sex crimes cases there is no physical evidence, and the guilt of the accused rests entirely on the veracity of the witness’s statements and testimony. The problem is that the allegations of criminal sexual conduct can be based on totally false memories.

A new article written by an international team of researchers suggests that false memories can be reversed. According to the article, false memories cause many problems, not the least of which is false criminal allegations. The existence of false memories has been shown by many prior studies, and the contribution of this new study is that with the right kind of interviewing false memories can be supplanted by true memories.

To understand how this would all play out in a Michigan sex crimes case, the investigation of a sex crime usually begins with a report made to a police department. The initial report will inevitably be based on a recollection of past events, in this case some kind of sexual trauma or abuse. The case might then be assigned to a detective, who is likely to seek a second interview of the complaining witness, a/k/a victim. Depending on the age of the complaining witness, a forensic interview may follow.

Community Caretaker Search Warrant Exception Not Applicable to the Home

Published on: May 21, 2021 | by Patrick Barone

The United States Supreme Court has recently ruled that the community caretaker exception to the search warrant requirement does not apply to a person’s home. The name of the case is Caniglia v. Strom, and in a unanimous opinion the Court found that guns seized by the police after entering a home without a warrant were not admissible in evidence on the basis of the community caretaker exception.

The Caniglia case involved a married couple who had been arguing in their residence. During the fight the husband grabbed his gun and told his wife to shoot him. The wife took possession of the gun, and put it away, hiding the ammunition. She later left the house to stay at a hotel, and because she was worried that her husband might suicide, she called the police. The wife then met the police back at their home where the husband had remained. The police instructed the wife to stay in the car as they interviewed the husband.

The police believed that the husband posed a danger to himself and called for an ambulance to take him for a psychiatric evaluation. He claimed the police agreed that if he went to the hospital, they would not take his guns whereas the police claimed he consented to a search of his home. The wife, believing the officers that her husband had consented, then guided the police to where the guns were inside the home, and the police took possession of them. No arrest was made, and no charges were brought against the husband. The guns were eventually returned, but the Caniglia’s filed a lawsuit, nevertheless, claiming a violation of Section 1983 under the Second, Fourth and Fourteenth Amendments. In the lawsuit the Caniglia’s sought money damages as well as injunctive and declaratory relief.

Is Your Business Prepared For A Ransomware Attack?

Published on: May 10, 2021 | by Barone Defense Firm

On May 8, 2021 Colonial Pipeline, an operator of a major gasoline pipeline based in Alpharetta, Georgia, fell victim to a major cyber-attack resulting in the shutdown of all its pipeline operations. Colonial Pipeline currently supplies approximately 45% of the fuel supply to the US East Coast. It is unknown at the present time how long the pipeline operations will be down, if they are down for an extended period this would likely affect the price of gasoline.

Colonial Pipeline was attacked by a ransomware threat. Ransomware is a type of malware that will target data and hold it hostage until the demands of the hacker are met. Sometimes ransomware can also lock down a system and block access to systems until demands are met.

Typically, the demands of the hacker are financial and will require the payment of a sum of money until the data is released or access to the systems is restored. Colonial Pipeline has not released any details on the specifics behind their attack other than they were attacked by ransomware and are moving quickly to resolve the cyber-attack and restore operations.

How Long Should a Marijuana User Wait Before Safely Operating a Car?

Published on: May 7, 2021 | by Patrick Barone

It can be difficult for a marijuana user to subjectively assess their level of impairment. Even worse, there is no way for a marijuana user to objectively evaluate their level impairment. So, after consuming marijuana medically or recreationally, how can a marijuana user make a safe decision about driving?

This uncertainty is what makes marijuana-related DUI charges in Michigan so complicated. You may feel fine to drive, but under the law, it’s not how you feel—it’s how your behavior is perceived and how well you can perform critical driving tasks. Unlike alcohol, where we have clear BAC limits, marijuana impairment is subjective and varies from person to person. That means two people could consume the same amount of cannabis, and one could be legally impaired while the other may not be—yet both could be arrested depending on how they appear during a traffic stop.

Before we get to that question, let’s do a quick review of Michigan’s OWI laws as it relates to drugs. In Michigan, you can be charged (and potentially convicted) if you are either impaired or intoxicated by alcohol, drugs, or any combination thereof. Specifically, Michigan’s OWI law references impairment or intoxication caused by alcohol, controlled substance or “other intoxicating substance.” See Michigan Compiled Laws Sec. 257.625.

Consecutive Sentences Greater than 25 Year Minimum Mandatory Lawful on Michigan CSC First

Published on: April 30, 2021 | by Patrick Barone

The Michigan Court of Appeals has indicated that two sentences of 30 to 50 years in prison for two CSC-I convictions may run consecutive to one another. This effectively means that this defendant received a minimum sentence of 60 years. The name of the case is People v. Randolf.

The Michigan sexual assault crime called criminal sexual conduct first degree, is set forth in Michigan Compiled Laws Sec. 750.520b. As therein provided, criminal sexual conduct in the first degree involves a victim aged 13 years or younger, or between 13 and 16 when certain exacerbating circumstances exist, such as a perpetrator in a position of authority.

The punishment for a Michigan criminal sexual conduct first degree conviction ranges depending again on the circumstances and facts of the involved crime. For example, in the case where the perpetrator is 17 years old or older, and the victim is less than 13 years old, there is a minimum mandatory sentence of 25 years. Furthermore, the law provides that the sentencing judge may order consecutive sentences for two criminal offenses “arising from the same transaction.”

Court Ruling Could Lead to Dismissal of Drunk Driving Causing Serious Injury Charge

Published on: April 26, 2021 | by Patrick Barone

The Michigan Court of Appeals has indicated, in the unpublished opinion of People v. Adam Robe, (COA# 355005); that a failure to wait 15 minutes before administering a roadside preliminary breath test (PBT) meant that the trial court could not consider the PBT in determining if the arrest is valid. This ruling may lead to the dismissal of the intoxicated driving causing serious injury charges pending against Mr. Robe.

The Robe case involved a two-vehicle accident. When the police arrived to assist, they immediately went to the vehicle where the driver had sustained serious injuries. Later then went to talk with Mr. Robe, and after about 3 minutes asked him to take a PBT. He consented, and thereafter was arrested and charged with drunk driving causing serious injury. Before trial, the defendant’s attorney filed a motion to dismiss, arguing that the PBT was not administered according to the administrative rules which require a 15-minute determination. No field tasks were administered, and the arrest was based almost solely on the failed PBT.

The trial court denied the motion, and rather than stand trial at that moment, the defense attorney asked for a “stay of proceedings” to pursue an “interlocutory appeal.” In other words, the defense attorney wanted an answer to this legal question about the PBT before putting Mr. Robe’s fate before a jury because if the attorney was right, and the arrest was unlawful, then there would be no trial. The drunk driving causing serious injury charge would have to be dismissed.

Michigan Criminal Defense Law Blog

Does the Right to Privacy Apply to Private Cell Phone Companies?

The Legal Fiction of Implied Consent

What did the NIJ Study Conclude?

Consent