Michigan Court Finds Search Producing Marijuana is Unlawful

If you are charged in Michigan with possession of Marijuana and/or Possession of Marijuana with Intent to Deliver, and the search producing the drugs is unlawful, your case can be dismissed.  That’s effectively what happened in the case of People v. Mahdi, where Mr. Mahdi was convicted of two counts of possession with intent to deliver less than 50 grams of a controlled substance, MCL 333.7401(2)(a)(iv), and one count of possession with intent to deliver less than 5 kilograms of marijuana, MCL 333.7401(2)(d)(iii).

In investigating this crime, the police found out where Mr. Mahdi lived, then tricked his mother into giving them consent to search her house where he lived.  The police did this because consent is an exception to the Fourth Amendment search warrant requirement.  In searching the home, they did not find any drugs but did find keys, a cell phone and a wallet.  This led the police to the apartment where they did find the drugs that became the basis of the felony drug charges. Also, while in possession of the phone, the police were able to retrieve calls from individuals ostensibly attempting to purchase drugs.

The court held that Mr. Mahdi’s mother had the authority or ability to consent, but because the police said they were going to search for drugs, but found keys, wallet and phone, the search exceeded the consent given.  Her consent was for the limited purpose of uncovering drugs.  Thus, the wallet, keys and phone were not lawfully seized by the police.

The prosecution also argued that these items were in plain view, another exception to the fourth amendment warrant requirement.  However, the court found that this exception also did not apply because the incriminating nature of wallet keys and phone only because apparent at a later point in time.  It was not immediately apparent.

Finally, the court found that the inevitable discovery exception also did not apply. The following factors are determinative of if the inevitable discovery rule applies, including (1) were the legal means truly independent, (2) was the use of the legal means and the discovery by the legal means truly inevitable, and (3) could application of the inevitable discovery doctrine incentivize police misconduct or significantly weaken the protection provided under the Fourth Amendment.

In this case, the court found that there was no basis upon which to conclude that the police would have inevitably discovered these items.  They were not in the process of obtaining a warrant when these items were found, and if it was applied in this case it would incentivize police misconduct.  In part, this is true because the exception would apply any time there was underlying probable cause.

On a related note relative to the search of the contents of a cell phone, the United States Supreme Court recently held that the search incident to arrest exception does not apply to a cell phone, and therefore, a warrant is generally required before searching a cell phone.[1] The court did hold that a warrant might not always be required to search a phone, however, if other case-specific exceptions still applied.”[2] Thus, the search of the contents of a cell phone generally requires a warrant, unless a case-specific exception applies.

Finally, the court found that the information collected from the unlawfully seized cell phone, that is text messages, which laid the foundation for the delivery charge, were not admissible as “fruit of the poisonous tree.”  In other words, these text messages were only found because of the police’s prior unlawful conduct.  As a result of this ruling, the case was remanded for a new trial.

[1] Riley v California, 573 US ___, ___; 134 S Ct 2473, 2493; 189 L Ed 2d 430, 451 (2014).

[2] Id. at __; 134 S Ct at 2494; 189 L Ed 2d at 451.