CSI Oakland County

Hard to believe that right here in Oakland County, Michigan, there is sufficient crime to sustain a nearly $2 million dollar a year crime lab.  Yet that is what Oakland County Sheriff Mike Bouchard will be announcing this morning in conjunction with his department's request for an expanded crime lab.

Sheriff Bouchard is expected to tout the Oakland County crime lab's accreditation by the American Society of Crime Lab Directors; the first lab in Michigan to achieve such status.  Allocation of the resources for the proposed expansion (up to 3 additional employees and the constantly advancing hi-tech equipment with which they will work) seems like politically rough terrain in these times.

Apparently, the expansion will allow Oakland County to by-pass the lab operated by the Michigan State Police, thereby significantly reducing delays.  The MSP crime lab has been flooded with additional work since the City of Detroit shuttered its crime lab amid claims of mismanagement and abuse; claims that are being investigated by the MSP.

This blogger recently experienced the effects of the MSP lab's processing delays in a felony case in Oakland County.  It took the Oakland County Prosecutor nearly 8-months to confirm blood reports tying my client to a crime scene.

The prosecutor ended up sending the blood-work to a private lab in Virginia.  During the months it took to process the evidence, my client was sent to prison on another unrelated matter from Detroit.  

Although the delay was not the accused's fault, he sat in prison on dead time in my case, willing to plead guilty and get his Oakland County case over with.  This was not possible due to the evidentiary delays.  Not that I am asking you to shed any tears for this hardened skell; but we pay for such delays one way or another.

If an expanded lab lessens delays, expedites justice, and eases the burden on the state lab, that's all good.  It's just a shame that our community sports enough crime to make such an arena possible.

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Posted in: crime scene investigation,Detroit,Michigan State Police,Oakland County,Oakland County Prosecutor,Oakland County Sheriff,Sheriff Mike Bouchard

Senate Proposes Statewide Registry for Medical Marijuana Patients & Caregivers

Earlier this week, a bill was submitted to the plenary Michigan Senate by the Judiciary Committee that would require a state-wide registry for medical marijuana patients and care providers.  Senator Rick Jones, a sponsor of the proposed legislation and chairman of the judiciary committee said the registry would be a "critical tool" for law enforcement.

 The mechanics of the proposed law would require the DCH to submit a registrant's name and address to the state police within 48-hours of issuing the marijuana registration card.  The police would then be able to call-up the data, for example, during routine traffic stops.

Of course, the compassion care industry is up in arms, viewing the bill as a significant affront to a registrant's privacy.  An earlier version of the bill called for the submission of a wider scope of personal information about a registrant.

Oddly, the ACLU has come around on this bill, opposing the earlier version as overly intrusive, but conceding that a state-wide registry could prevent potentially dangerous raids where lots of feathers get ruffled.  Still, the ACLU's official position is that the bill, even as amended, needs a separate "probable cause" requirement prior accessing the database.  Unworkable, in our humble opinion.

Senator Jones' committee was busy this week, also introducing another medical marijuana related bill; this one to stop those pesky lawsuits filed by high profile lawyers against municipalities over their pot ordinances.

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Posted in: medical marijuana,Medical Marijuana Act,Michigan Senate,Michigan State Police,Senator Rick Jones

Michigan State Police Extracting Cellphone Data During Traffic Stops

Since 2008, the Michigan State Police apparently have used devices in their patrol cruisers capable of extracting data from a driver's cell phone.  The troubling part is that it may be possible to tap your cell phone during a routine traffic stop.

The data extraction device, Cellbrite UFED, can pull existing, hidden, and deleted phone data, including your call history, text messages, contacts, and images; even your geotags. It can also extract ringtones which can be highly incriminating in some situations. These devices can crack into more than 3000 cellphone models and easily blow-thru passwords.

All this, of course, raises some legitimate concerns under the Fourth Amendment's "search and seizure" clause.   Do you have a reasonable expectation of privacy in the data contained in your cell phone once you take that puppy on the road?

Along these lines, the Michigan Chapter of the ACLU has filed a freedom of information act request with the MSP seeking detailed information on how the device is used.  In response, the MSP has issued their own press release asserting that they do not use the data extraction device during routine traffic stops, do not use the device without a prior search warrant, and cannot extract data from the phone without first having possession of the phone.

The MSP has also asserted that compliance with the ACLU's document request would be costly but they would be delighted to produce the records in exchange for a half million dollars to cover the costs.

Stay tuned for the law suit.  In the meantime, to protect your privacy when the lights and sirens erupt behind you on your next traffic stop, you should probably power down your phone.

Cellbrite UFED

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Posted in: ACLU,American Civil Liberties Union,Cellbrite UFED,FOIA,Fourth Amendment,freedom of information act,Michigan State Police,MSP,search and seizure

"First and Ten": New Teen Driving Law

The new driving law that takes effect Wednesday is known as "First and Ten".  Teens must stop adding (non-family) passengers under age-21 after the first one; and back in the driveway by ten o'clock pm.

The present curfew is midnight, without any passenger restrictions.  The Michigan State Police website has an excellent summary of the new restrictions.

The new law applies to all level 2, or "intermediate" drivers in Michigan's Graduated Driver Licensing (GDL) program.  These are drivers who are at least 16-years of age who have also completed their coursework and road test.

Statistics published by the Insurance Institute for Highway Safety provided the impetus for the new law.  These stats show that in 2008, more than 60% of all teen age passenger fatalities involve a teen age driver.  Also, teens are disproportionately responsible for all traffic fatalities: nearly 20% even though they make-up only 14% of America's driving population.

Driving is indeed a priviledge and central to our way of life.  Modern distractions such as cell phones, GPS devices, and sound systems all contribute toward shifting a drivers' focus from the road to the interior of the vehicle.  Add a few teen age friends and a teen driver and it's an accident waiting to happen.

The new teen driving law has been splashed on bill boards around Metro-Detroit to increase awareness among drivers; parents and teens alike.  

Violators of the new law will receive 2-points on their master driving record and will have their probationary driving period extended for up to a year.

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Posted in: First and Ten law,Graduated Driver Licensing,Institute for Highway Safety,lawyer,Michigan Motor Vehicle Code,Michigan State Police,teenage driver

Lab Techs Required to Provide In-Court Testimony, For Now

Last year, I prepared and argued a series of appeals for a man convicted in Washtenaw County of sexual assualts near Eastern Michigan University.  He received life sentences in six separate cases.

The primary issue in each case was identification.  Due to the way the victims were raped, they never saw their attacker's face.  Condoms and other precautions minimized physical evidence left at the respective crime scenes.

In one of the cases, however, Washtenaw County Sheriff detectives were able to recover a small semen sample.  The Michigan State Police crime lab contracted with an out-of-state forensic laboratory that produced a report concluding the sample matched the defendant's DNA.

At defendant's trial, the Washtenaw County Prosecutor called the MSP lab tech and the out-of-state lab tech to testify about the matching DNA.  On appeal, I argued that defendant's Sixth Amendment right to confront witnesses was violated because the out-of-state lab tech relied on procedures and internal reports created from other technicians that were not present in court to testify.

Defendant's convictions were affirmed by the Michigan Court of Appeals and his petitions for writs of certiorari to the Michigan Supreme Court were denied last summer.  Around the same time, however, the United States Supreme Court decided Melendez-Diaz -v- Massachusetts.

In the Melendez-Diaz case, Suffolk County, Massachusetts law enforcement utilized lab "affidavits" concluding that a seized substance was cocaine.  The Supreme Court held that such an affidavit was insufficient to convict and that the lab technician must testify in open court.

In the few short months since the Melendez decision, law enforcement and prosecutors have raised an outcry about the increased costs and difficult logistics associated with producing the in-court testimony of lab techs.  The defense bar, on the other hand, has hailed the decision as a victory for individual constitutional rights.

In a rare move, the U.S. Supreme Court has scheduled oral arguments for January 2010 in Briscoe -v- Virginia; a case raising the same issue the high court so recently decided in Melendez-Diaz.  The New York Times has speculated that Briscoe will not overturn but rather, simply explain and clarify the Court's earlier ruling on lab technicians.  One such procedure would be to make lab technicians available for cross-examination rather than requiring their testimony in the prosecutor's case-in-chief.

At this date, my client is left with only a series of federal court habeas corpus petitions based on the Sixth Amendment.  Although his state-court remedies have been exhausted, the decisions of the United States Supreme Court, discussed above, will have a significant impact on his habeas petitions soon to be pending in federal court.

The slightly increased cost to the state of securing the in-court testimony of all the lab techs that worked on his DNA sample is a small price to pay for our collective constitutional liberties.

The goal of a criminal defense at trial is to force the government to prove the elements of their case.  The goal of all criminal appellate representation is to ensure that the defendant's trial and sentencing were fair. Without these safeguards, our Sixth Amendment right to counsel is meaningless.

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Posted in: criminal attorney Oakland County Michigan,DNA,Eastern Michigan University,habeas corpus,Michigan State Police,Sixth Amendment,Washtenaw County Circuit Court