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Apr 26 2012

Michigan Man Wins Right to Resist Police

In a major victory for sanity and constitutional limits in my home state, the Michigan Supreme Court ruled in favor of a man who was arrested for resisting the police when he refused to let them search his home without a warrant. The ruling was 5-2, with the two most conservative justices in dissent. The ruling overturns a 2004 case that had ruled the opposite. Our state high court generally sucks, but they finally got one right.

12 comments

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  1. 1
    d cwilson

    I hope the justices in the majority decision emailed the text of the fourth amendment to the lower courts, because it seems like they’ve never heard of it.

  2. 2
    pacal

    I don’t get it. This looks like a no-brainer. After all isn’t the purpose of a warrant to get around the fact you don’t have to allow th police to search your home? Given that that is the case how could two judges conclude that refusing to allow police without a warrant to search your place is obstruction of justice?

  3. 3
    Mr. Upright

    @d cwilson: Not according to the new, improved, updated reading of Amendment IV. I recall General Hayden a few years ago aping what many TV talking heads were saying about warrantless wiretaps.

    To summarize the argument — the Constitution requires that searches be reasonable. As long as they are reasonable, you don’t need a warrant.

    They left unstated, of course, the implication that “unreasonable” searches were just cool if they could convince a Judge that the search was unreasonable enough for a warrant.

  4. 4
    Ben P

    I don’t get it. This looks like a no-brainer. After all isn’t the purpose of a warrant to get around the fact you don’t have to allow th police to search your home? Given that that is the case how could two judges conclude that refusing to allow police without a warrant to search your place is obstruction of justice?

    You have to look at the circumstances. Remember the Fourth Amendment says

    “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

    There’s dozens and dozens of cases deciding what “unreasonable searches and seizures,” means, and in the most general sense it means that you need to get a warrant unless there are “exigent circumstances.”

    This also sits against a backdrop of common law which said that you do have a right to physically resist unlawful police conduct. Many states have abrogated that right, meaning if you physically resist a police officer you can be charged for it, regardless of whether the cops were acting legally or not.

    The police had an arrest warrant for a man named Shane Adams. They observed what they believed to be Mr. Adams car near a residence where a party was being held. When they knocked on the door they heard a commotion inside, someone answered the door, the police told her they were not interested in writing a bunch of underage drinking tickets, but asked about the car, the person identified that the vehicle did belong to Adams but said Adams was not in the house, he then informed police they could not come in without a warrant. The police forced their way into the house to “secure it” while waiting for a warrant to search the house. The owner resisted and was himself arrested and charged with assaulting a police officer.

    Now, if the officers had probable cause to believe the suspect WAS inside the house and could flee or destroy evidence if they delayed to obtain a warrant, that could be exigent circumstances making it “reasonable” for them to enter the residence.

    For example, if they directly observed him fleeing into the house, that would be hot pursuit and no warrant would be required.

    However, the court in this case held:

    1. The Michigan statute in question did not abrogate the common law right to physically resist unlawful police conduct.

    2. The trial court had ruled that no exigent circumstances existed because there was no reason to believe the suspect was present in the house.

    therefore because the police acted illegally, and the suspect had a right to physically resist unlawful police conduct, there was no evidence to sustain a charge of assaulting or resisting a police officer.

  5. 5
    D. C. Sessions

    Ah, yes, the real Miranda warning:

    You have the right to remain silent

    … but doing so carries a minimum sentence of five years.

  6. 6
    wscott

    Thanks for the info, Ben. I missed the story when it first came around, and the linked article didn’t go into many details. Do you know what the arrest warrant for Mr. Adams was for? Not really relevant; just curious.

    It’s not unheard of for even well-meaning cops (yes, they exist) to rationalize their way into pushing the limits of exigent circumstances, but this is fairly blatant. If they believed the suspect was in the house, they would’ve been within their rights to secure the exterior of the house to make sure he couldn’t leave until they could get a warrant. But they don’t have to go inside to do that.

    IANAL question: normally in an illegal search you can at least count on the evidence getting thrown out. But in this case, since they had a valid arrest warrant, had they found Mr. Adams they certainly wouldn’t have let him go. So if the resisting charge hadn’t entered into it, what would’ve been the “down side” to the police for conducting this illegal search? Theoretically the home owner could sue them, but that’s a steep driveway.

  7. 7
    plutosdad

    It’s not a “no brainer” because the police looked through the windows and thought they saw illegal activity (in this case, underaged drinking, they claimed they received a tip from a neighbor). I think (from tv :) ) they can enter if they have probable cause.

    Of course, the truth in the end was they saw “people trying to hide” which doesn’t mean illegal activity. I bet if they saw a kid drinking out of a beer can or bottle then they might have won. So I think it all hinged on what exactly they saw, but not sure. But whatever they saw it was not enough for probable cause to enter. The thing is, all they had to do was block the exits (which they did) and call in for an emergency bench warrant. but they were too lazy or wanted to bully the owner, and lost.

    After looking around here is an article with more info.

    http://detroit.cbslocal.com/2012/04/21/man-who-resisted-police-wins-supreme-court-case/

  8. 8
    plutosdad

    OH nvm thanks Ben P, the article I read didn’t mention they were looking for Adams specifically.

  9. 9
    wscott

    @ plutosdad: Thanks for the link. It sounds like the police were within the law right up to the point where the owner tried to close the door on them, which makes it sound like they arrested him more for “disrespect” than anything else.

  10. 10
    pacal

    Re: No. 4 Ben P

    I am well aware of exigent circumstances. I am also aware that on the face of it it appears that no exigent circumstances existed in this case. Your description of the circumstances of this case would appear to confirm that.

    So again given the facts of the case how could 2 judges conclude that under the circumstances resisting a Police unwarranted search was obstruction of justice?

  11. 11
    Ben P

    So again given the facts of the case how could 2 judges conclude that under the circumstances resisting a Police unwarranted search was obstruction of justice?

    That’s the meat of the opinion itself.

    http://coa.courts.mi.gov/documents/OPINIONS/FINAL/SCT/20120420_S141837_66_moreno-op.pdf

    The Michigan statute in question MCL 750.81d

    an individual who assaults, batters, wounds, resists, obstructs, opposes, or endangers a person who the individual knows or has reason to know is performing his or her duties is guilty of a felony punishable by…

    The plain language of the statute is clear, if you “batter, wound, resist, obstruct, oppose or endanger” a law enforcement officer (that’s stated in the definitions, not in the quoted part) performing their official duties, you are guilty of the specified crime.

    On its face it contains no exception for an officer who is performing their official duties, but contrary to law.

    The lower courts in this case, along with a prior appellate court in Michigan interpreted this statute more or less according to its plain language, and read that it had abrogated the right to physically resist an unlawful act by the police officer. To my knowledge that’s a majority rule. The fact that an officer was acting illegal in the performance of their official duties is not generally a defense to resisting arrest.

    The majority here applied rules of statutory construction using the idea that if the legislature chooses to overrule a common law right, it must do so clearly and unequivocally, and held that this statute did not clearly and unequivocally overrule the common law.

    The dissent argues primarily that when the legislature revised the statute and deliberately omitted any references to “lawful conduct” on the part of an officer they were unequivocally overruling the common law right.

    What the legislature meant by the revision is something the majority addresses, but not head on, in short they play word games by arguing “duties” implies lawful conduct.

    So to answer you’re question, it’s not hard at all to see how two courts found the conviction should stand.

    As a matter of policy, I absolutely think the majority is right. There should be a right to physically resist police officers whose conduct is proved to be unlawful.

    However, as a matter of judicial craftsmanship, I’m not even sure it’s a close question. The text of the statute provides no such exception, and when the legislature amended the statute they specifically omitted any such exception. The majority contorts itself to get around this. Statutory construction is traditionally only used where the law itself is ambiguous, not to change the meaning unambiguous statutory text.

    If I’m a judge, I have to think long and hard before coming back with anything other than “I don’t like it, but the legislature said what it said and it’s not our job to change the law.”

  12. 12
    Ben P

    Clarification – when I say “To my knowledge that’s the majority rule” I mean that is the rule in most states. Separately when i talk about “the majority” I’m referring to the 5 judges who wrote the court’s opinion in this case.

    also “your question” It’s midnight and my proofreading skills are poor.

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