Fighting for one’s Fourth Amendment Rights

Fighting for one's Fourth Amendment Rights
It’s been a spectacular few days at the Law Offices of Michael L. Steinberg in Fighting for one’s Fourth Amendment Rights.
The Court granted Defendant’s Motion to Quash the Information.  Defendant was charged with Resisting and Obstructing a Police Officer.  Part of that charge encompasses disobeying the lawful order of a police officer. Defendant has a common law right to resist an illegal arrest.  The Fourth Amendment requires the police to have probable cause to arrest, defined as Criminal activity afoot or some very narrow grounds.
In the case, Mike Steinberg argued to the district court judge that a citizen can legally, loudly protest the towing of her friend’s car and not be subject to arrest.  That there was nothing to investigate as the police agreed to the same  That there was no valid exception to detain “to sort things out”  The District Court Judge agreed that the defendant could protest, but nonetheless interfered with their duties.  Mr. Steinberg filed an extensive brief on Fourth Amendment jurisdiction including some from our overseeing Federal Sixth Circuit Court of Appeals. In his brief, Mike Steinberg analyzed exceptions and argued why they did not apply. Mr. Steinberg thanks, Thomas Loeb for his immediate access and grasp of a very helpful Sixth Circuit case.   The Circuit Court agreed with Steinberg’s analysis and GRANTED the Motion to Quash which extinguished the case.  As my colleagues would report, getting such a result is very rare.
There are many choices for lawyers out there.  To paraphrase my favorite coach Mark Dantonio. While some are talking about results, Michael L. Steinberg is getting them.  Michael L Steinberg remains committed to fighting any case along with fighting for one’s Fourth Amendment rights.

Macomb County Circuit Court Armed Robbery Defense

Macomb County Circuit Court Armed Robbery Defense. Not guilty of Armed Robbery. Guilty of Unarmed. Life Felony gone. Convicted of a 15 year. Given the event was captured on HD video recording and when he was apprehended a month later, he just happened to have a very unique hoodie in his personal belongings. The very one used in the incident. Client IDd by clerks recognition of his voice. The assailant was a previous frequent customer. Stellar outcome.
Key to success. Us playing the video in slow motion from 2  camera angles, one capturing a view of the assailant’s hands. Jury found no implied weapon
There are a lot of lawyers that parade results. Me I have a primarily capital case (life max) docket. As in this case and many of mind, damaging evidence such as client statements, video recordings and physical evidence, all came in.  I didn’t go to law school to try traffic tickets, I try the toughest ones.  Most the time as court-appointed with no resources. When assessing whom you hire, have them talk about those tough cases.
Michael L. Steinberg, Esq
A Constitutional Warrior

Michael Steinberg the relentless Criminal Defense Lawyer

Mike not only practices law, he also fights tirelessly to set policy, standards, and procedures for the maximum and zealous representation of the accused in the State of Michigan. He is currently getting ready to run for his 6th term as a member of the Board of Directors for the Criminal Defense Attys of MI (CDAM).  The picture above is with fellow members of the Board and Executive Committee. Mike is at the highest level of membership (Constitutional Warrior-1st one ever), has held membership in the organization since 1991 and have served on the Education Committee for over 20 years.  During his tenure, we have created the award-winning Trial College, A is for  Attorney, Small Group Practice Skills, and the  Evidence Bootcamps.  Mike is a regular lecturer at conferences and has been part of the planning for every conference that has occurred for over 20 years.  Mike is on a special subcommittee that will be spearheading CDAM’s mandate to educate and meet the needs of the individual county’s that are no compelled to meet the standards set by state law as defined by the Michigan Indigent Defense Commission.
When choosing a criminal defense lawyer, choose one that has a level of commitment to the defense of the accused.  Mike Steinberg is that lawyer

Navigating the Pitfalls of Domestic Assault Cases

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law-knowledgeAt the onset of this article, the Law Offices of Michael L. Steinberg, and Mike Steinberg personally do not condone violence in any sort.  If your relationship has gotten to the point were there it has gravitated toward frequent angry outburst, it is time for the participants to individually and as a partnership, to seek professional intervention.

Having said the above, it is the goal of this article to present the difficult evidentiary issues that come up in these type of cases.  I am attaching an Outline of a presentation that I presented to the Criminal Defense Attorneys of Michigan for their Spring 2016 conference.

In summarizing the above link, issues that are presented in  these type of cases are what is an excited utterance (for the layperson one made spontaneously without time to contemplate them), the right of confrontation and what we can do if the witness does not show.

A basic tenet of these cases is that the person was in a dating or was in a dating situation, lived in the same household or had a child in common.  One of the pitfalls that I see lawyers doing is assuming that there was a dating situation. Many times the arresting officer just assumes there was a relationship simply because they were together at the time in question.  That is a very broad assumption that must be attacked. Also in cases where the witness chooses not to come to court, how can you establish the relationship.

Witness available

The excited utterance exception is only applicable IF the complaining witness is available.  That means he or she is coming to court and is willing to testify.   As I have presented in the attached outline above, there are great limitations as to what excitement really entails. Simply because someone reports information in an excited or hysterical matter does not mean it is an excited utterance.   I have seen many lawyers gloss right past this very important aspect.  If one has time to contemplate or sort out what they are saying, even if presented with anxiety or an elevated voice, it loses the aspect of excitement as defined by the law.

As a practical matter, these statements are very suspect by there nature.  Falls under the theme of People say the most damning things simply because they are very tense when reporting.  A good lawyer, such as Mike Steinberg,  handles that adeptly during jury selection.

Another avenue that the government will try to use medical records to establish the detail of the case.   While it may be admissible to say X sustained injury because Y struck X, the Michigan Supreme Court has held that extra detail is not admissible for the purpose of medical treatment. Mike Steinberg always recommends that we agree for the production of medical records when the prosecution seeks their admission or pursuant to case law and court rule pursue them ourselves.  Why?  They are chock full of ammo for cross examination (1) the statement made to medical professionals may be different than in the field. Had time to think. You can impeach with any evidence. (2) The blessed tox report. Complainant has a BAC of .21. Even though blood drawn for hospital treatment is not overly accurate (they do not want to kill you when they treat you with pain killers) it is still indicia of intoxication. Same argument for drugs on board.

(3) Subpoena the chart notes. Was Complainant combative? Did he/she appear non responsive (4) Medical history prescribed drugs, disorders both physical and mental, etc.

Witnesses unavailable

Sadly many judges get it wrong when a complaining witness does not come to court to testify for a trial.  Perhaps grafting their own belief that failure to appear is part of some domestic violence syndrome.   Mike Steinberg is of the learned opinion, as demonstrated in the attached goggle drive document, that these courts get it wrong.  Time and time again, the 6th Amendment guarantee of confrontation of witnesses and evidence against the accused, has been upheld by the United States Supreme Court in domestic violence cases.   Many of cases cited in the attached in the above Google drive document, were domestic violence cases.  In assessing the Confrontation, we have to determine whether the proposed evidence is testimonial or non-testimonial. Clearly reporting that Johnny hit me in the head may be non-testimonial because it is information to get the police to come to the house.  But if the 911 operator goes into greater detail of the event, it then becomes testimonial information and thus excluded under the Confrontation Clause.  Asking for information in a question and answer format is investigatory and thus testimonial

In the material attached above, some courts have wrongfully said that when the accused leaves the residence but is still at large, that there is an Ongoing Emergency, a noted exception to confrontation.  A Michigan Supreme Court case was reviewed by the United States Supreme Court in Michigan v Bryant-See google document attached.   In Bryant, the Court found that purely private disputes fall under this exception and simply because someone is at large does not invoke it either.

What do you do if somehow the court lets evidence in (the complainant’s statements) and there is no witness. Well, there is a nice rule of evidence called MRE 806.  It allows for any evidence that would have been admissible had the declarant testified.  So those medical records spoken about earlier, come into play. If the complainant was under the influence, had been combative, had given a different version of the events, etc ALL come in to discredit.

There are statutes that permit the government to bring in other acts of domestic violence.   For example, MCL 768.27b allows the same.  But it has limitations such as not going back more than 10 years.   The Supreme Court in People v Watkins, 491 Mich 450; 818 NW2d 296 (2012), listed several considerations which may lead a court to exclude evidence proposed under MCL 768.27a on grounds that it was inadmissible under MRE 403. The non-exhaustive list, which may be illustrative for analysis of MCL 768.27b evidence, included: “(1) the dissimilarity between the other acts and the charged crime, (2) the temporal proximityof the other acts to the charged crime, (3) the infrequency of the other acts, (4) the presence of intervening acts, (5) the lack of reliability of the evidence supporting the occurrence of the other acts, and (6) the lack of need for evidence beyond the complainant’s and the defendant’s testimony.” Id. at 487-88.  So one of the significant holdings is in assessing the proposed evidence, the trial court must assess the availability of evidence in the current case before admitting evidence of other cases.  Otherwise, undue prejudice would occur.

The other section is MCL 768.27c.  That statute permits the use of narrative statements in a domestic violence statement.  Several appellate courts have ruled that Section 27c is subject to the Confrontation Clause.  That means the statements do not come in unless the declarant is available.   Last, there are limitations due to bias and motive of the declarant along with statements being consistent with the evidence acquired by the police.

As you can see, hiring a lawyer, such as Mike Steinberg is essential in these cases.  One who knows the intricate evidentiary issues presented and is not willing to just lay down.  The implications of these convictions are horrendous.  While a first offense, can be diverted under MCL 786.4a, it still can be used for charging purposes for future domestic violence offenses.

Hopefully, this comprehensive guide has been helpful


Thoughts from the Trenches Officer Encounters

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officer encounters - criminal defense


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This is not about the horrific officer encounters we have been seeing blanketing the television lately. This is more on the day to day traffic stops, requests for information, etc.

Sadly, the US Supreme Court recently ruled, in Utah v Strieff, that a police officer could stop a citizen to ascertain whether or not, they have a warrant for their arrest. Previously, a police officer had to have knowledge of the warrant.


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Based on this and other rulings, one may ask, in a lawyer’s opinion, how they should handle police encounters. I offer the following:
  1. Always have your identification documents, within reach. If you are in a car, know where the registration and proof of insurance is at all time. Attempt to have those documents available before the police officer makes contact with you. If the documents are in the glove box or console and the police officer is at the vehicle, inform he or she in an audible tone that you will be reaching for the documents.
  2. Be cordial to the police officer. If you are initially angry, or have asked tersely while you were stopped, apologize. Cordial demeanor can go a far war. Just today, I got several traffic misdemeanors dismissed because my client was polite to the police.
  3. Answer questions only in reference to the encounter. Volunteering information will only lead to further investigation.
  4. Avoid furtive gestures. While a police encounter may be nerve racking or anxious, gestures (fidgeting fumbling, etc) will invite a search of you or your vehicle.
  5. Please note that it is lawful for the police to order you out of a vehicle and pat you down for officer safety. It is also lawful for them to pat you down during an investigatory stop as described above. Be aware that the plain feel doctrine is established law Minnesota v Dickerson and People v Champion (MI Sup Ct). That means if a cop, by palpating a conceal item knows what it is, he can remove it from your pocket.
  6. Obey all lawful orders of the officer. Example keep your hands out in the open. Get down on the ground. Give me your documents. DEMANDING CONSENT TO SEARCH IS NOT A LAWFUL ORDER. Demanding an answer to a question that might incriminate you (do you have any drugs on you) is not a lawful order.
  7. While it is legal to resist an unlawful arrest, failure to obey the lawful order of a police officer can result in a felony charge of resisting and obstruction of a police officer.
Michael L. Steinberg is a 26 year veteran criminal defense lawyer. He answers his phone directly. You call no secretary. He is here to provide excellent defense in all criminal cases 24/7/365.


Pat Down Searches

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On TV you often see a police officer come up to an individual and pat he or she down. TV land which is far from reality, is just that, fiction. Sadly, many citizens, feel that the police are just free to pat down someone and its ok.
Both the federal and Michigan Constitution protect against the police for doing a search without a warrant. Katz v United States, 389 US 347, 357; 88 S Ct 507; 19 LEd 2d 576 (1967). Similarly, seizures must be circumscribed “in area and duration ” 110 SCt 2301.
A police officer may briefly stop and frisk someone Terry v Ohio, 392 US 1; 88 S Ct 1868; 20 L Ed 2d 889 (1968) But it can be done only for “reasonable inquiries” aimed at confirming or dispelling his suspicions. Id. at 392 US at 30. More importantly “when an officer is justified in believing that the individual whose suspicious behavior he is investigating at close range is armed and presently dangerous to the officer or to others,” the officer may conduct a patdown search “to determine whether the person is in fact carrying a weapon.” Id. at 24.
Police can do a search of a citizen if they have reasonable and articulable suspicion that a citizen has contraband on them. To meet this portion of the law, when determining the reasonableness of the stop and frisk under the first prong of the test, “…due weight must be given, not to [the officer’s] inchoate and unparticularized suspicion or ‘hunch,’ but to the specific reasonable inferences which he is entitled to draw from the facts in light of his experience.” [emphasis added} Terry, supra, at 392 US at 27. As the Court stated in Sibron v New York, 392 US 40, 73; 88 S Ct 1889, 1907; 20 L Ed 2d 917 (1968), “[t]here must be something at least in the activities of the person being observed or in his surroundings that affirmatively suggests particular criminal activity, completed, current, or intended.”
So friends, the police cannot just search you because they have a hunch that you are carrying a weapon or contraband. It must be based on your individual actions and circumstances. For example, walking in a high crime area or even attending a concert where drugs are used or sold does not permit the police to stop and frisk you. There must be more.
Another tip is this. Let’s say the police are patting you down because they suspect you are carrying drugs. No drugs are found. Arguably the search must stop. Let’s say they feel what is later determined to be a large amount of money. Money stolen from a store up the street. This invokes the plain feel doctrine devised in Minnesota v Dickerson, 508 US 366; 113 S Ct 2130; 124 L Ed 2d 334 (1993) and applied in Michigan under People v Champion, 452 Mich 92; 549 NW2d 849 (1996). It requires that (1) the police officer was lawfully searching your person and (2) from the touch of the item, the police officer
knew the object was contraband. In the hypothetical given, money is presumed to be innocent and therefore would fail on the plain feel doctrine.
Michael L. Steinberg is a dedicated criminal defense lawyer, who regularly litigates illegal searches and seizures along with other violations of your rights guaranteed under state and federal constitutional and statutory law. Mike actually answers his phone and is personally on top of his cases.


TRIAL LOG OPENING STATEMENTS – Telling the Case from your Clients perspective

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I have not been to trial in a very long time. But you never forget the tools you learn at trial college. This was a specialized intensive training that involves interpersonal skills, role playing and story telling. It is put on by the Criminal Defense Attorneys of Michigan (CDAM). I am the organization’s first Constitutional Warrior, a 5th term member pf the Board of Directors and have served on the Education Committee for over 20 years.

I got to connect with the jury, during voir dire (Jury Selection) in many wonderful ways yesterday. We talked about some really icky stuff like the shooting and their feelings. My guy is not the shooter. We also talked about my fear of judging him for his criminal past. I have a crime spree from 2000-2001 with the same,co D. All coming in. I feel a little fraudulent because my motion to keep out an uncharged prior from a month earlier was ruled on post voir dire. Of course coming in.

Many of my colleagues know I like to do my opening in the first person. I lost my suppression motion and so my client’s words are coming in. In my client’s words, I reminded them they promised to look at the charges individually and the actions of individuals. Weaving the facts elicited from the investigation and my clients words, many facts were placed before the jury. In my client’s words an explanation of the ways he tried to dissuade him and what not. I then told the jury, in my client’s words that his lawyer wanted to talk to them,again. The lawyer, me, went through the individual elements weaving the jury panel into it. By that I referenced that this,was a case of pages not the book. Appealing to the teachers on the panel, that this was like a section of trig,rather than a course in mathematics. Appealing to the IT tech on the panel this was like unraveling a sector error rather than a system failure

I just got a call from a reporter covering the case. He had never had seen the 1st,person method in action and had been covering the courts,for years. He is going to write about it. I plugged CDAM. Lets hope it works.

Before I forget this is a felony murder case. At opening the first action was to look at the family of the decedent and express condolences for their loss. I am spiritual so prayers were expressed as well. The wife of the decedent was the 1st witness. First words again condolences. Last words after soft cross, condolences and prayers

This is not about me. This is to sway those methods we learn , work. It was a tough day today. I lost a big motion that hurts my case and had to hear the wailing of the family. Something that, for me, could only show up with love during cross. I am not sure I know this softer Mike trial lawyer but today I feel good. Two years plus since my last trial. Two,years more of spiritual development

Thanks for the indulgence. Embrace the softness. I may post more thoughts as the trial progresses.

I will try to report more when I can. If you cannot tell, I frickin love to me in trial.


The importance of conducting a preliminary examination in a felony defense

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You Never Know the Gifts You Will Get When You Challenge A Felony Case at the Preliminary Examination Level

In Michigan, when you are charged with a felony (any charge where the maximum penalty is greater than 1 year of incarceration). By statute, you are required to attend a Probable Cause Conference (PCC) . There you decide whether you are not going to challenge probable cause and allow the case to proceed to the circuit court. If you decide, to challenge Probable Cause that a felony was committed and your client was one of any individual involved in a crime, the case proceeds to a Probable Cause Examination. (PCE) The PCC must be held within 7 days of an arraignment in the District Court. The PCE within 21 days.

The proper standard for binding a defendant over is whether the evidence presented at the preliminary examination established probable cause both that a felony has been committed and that the defendant was the perpetrator. People v Coutu, 235 Mich App 695(1999); People v Neal, 201 Mich App 650, 654(1993). “Probable cause is established by a reasonable ground of suspicion, supported by circumstances sufficiently strong in themselves to warrant a cautious person in the belief that the accused is guilty of the offense charged.” People v Tower, 215 Mich App 318 (1996); Coutu, supra; People v Paille #2, 383 Mich 621, 626 (1970).

Accordingly, there must be “some evidence from which each element of the crime may be inferred.” Coutu, supra. But the magistrate’s inquiry is not limited to only verifying that evidence was presented on each element. Rather, the magistrate must make his determination`after an examination of the whole matter.’ Although the prosecution has presented some evidence on each element, if upon an examination of the whole matter the evidence is insufficient to satisfy the magistrate that the offense charged has been committed and that there is probable cause to believe that the defendant committed it, then he should not bind the defendant over on the offense charged but may bind him over on a lesser offense . . . .

Neal, 201 Mich App at 655.

Credibility of the witness must be taken into consideration in deciding whether or not to bind the case over. In addition, per MCR 6.110 (D) and (E), the defense counsel has the right to challenge evidence that may be unlawfully obtained. The best part of the rule, is that we get another bite at the apple in the Circuit Court.

The decision to run an exam is one of strategy. There is always a risk of additional exposure to a higher crime one often threatened by the prosecution. Mike Steinberg handles a slew of capital cases (Life in prison as a maximum). Mike’s rule of thumb is to run the exam if the case is going to trial. Almost all of Mike’s cases that ended in acquittal, were the result of running the exam.

There are many reasons to run the exam. One is to get the case dismissed or lowered. Another is to lock people into testimony. When it goes to trial, people forget what they say. Another is to convince the prosecution that their case is weak and resolution is in order. Last, another is to learn more about the case, demand further evidence and learn of violations of constitutional rights.

Two cases went to exam this week. One was a simple possession of controlled substances. One were 90 percent of the lawyers would waive the exam. Mike ran this one. And what was learned was the accused was illegally subjected to search and seizure. Bottom line, we will give it a heck of a fight in Circuit Court. The best part is the judge this case is going before, when she sat as a district court judge , suppressed the search of another one of Mike’s clients [see 6.110 (D) and (E)] does work. She is a good and fair judge.

The second case was a domestic dispute that went bad. The girlfriend was stabbed. In that case, the accused was charged with breaking and entering an occupied residence (people inside) and a felony was committed. It was a 20 year felony. The prosecution threatened to increase the charges, even though they did not have evidence to support a higher charge. They did add 2 more and attempted to add 10 year felony of evidence tampering.

Well, we ran the exam and wouldn’t you know: The home owner said Mike’s client was welcome there in the time in question. You cannot be accused of breaking and entering where you have the owner’s permission. As to the tampering evidence, Mike’s astute reading of the statute showed that all they could do was bindover on a 4 year felony. So 20 yr felony gone, a 4 year, instead of a 10 year, was added and another 10 year. While some may be dismayed with the additional charges, the prosecutor was going to add them anyway. The credibility of the complaining witness was shot to hell and we have a great case to try.

Mike has proven results in serious felonies. He has gotten felony cases dismissed, at the preliminary exam level, based on the credibility of witnesses. Let Mike be your lawyer and we, together, will figure out the best strategies to get you maximum results.