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CRIMINAL 19: Traffic stop leads to vehicle search after the smell of marijuana.

In this case, Police Officer W observed a vehicle apparently speeding on a residential street in Detroit. Officer W commenced a traffic stop of the vehicle and the two persons who were in the car. Defendant was in the driver’s seat. Officer W approached the vehicle on the driver’s side, spoke with defendant, and smelled an odor of freshly burned marijuana from the vehicle.

Officer W then asked defendant to exit the vehicle. Officer W explained that, because of the freshly burnt marijuana that was emitting from the vehicle, he asked defendant to step out of the car.

Vehicle Search

The smell led Officer W to suspect that defendant possibly was under the influence of marijuana while driving. A field sobriety test was not conducted on defendant. Immediately after defendant stepped out, Officer W began to search the vehicle. This search resulted in the finding of cocaine. The cocaine was packaged in two clear knotted bags. One bag was located beneath the driver’s seat. The other bag was discovered in the arm rest.

Defense

Defense counsel raised Fourth Amendment issues about the traffic stop and the vehicle search. The defense argued the smell of marijuana itself doesn’t give him the right to search an individual’s vehicle. He asked defendant to step out immediately. He didn’t know if the defendant was under the influence.

Probable Cause

The court stated the defendant does not have to be under the influence, because the law states that you can’t operate a motor vehicle while smoking marijuana. You don’t even have to be under the influence. You cannot have or operate a motor vehicle while smoking marijuana. Smoking marijuana, in and itself, that’s what gave Officer W probable cause.

The smell of burned marijuana does provide probable cause to search a defendant’s vehicle, in that the Michigan Medical Marijuana Act does not allow for the use of marijuana in a vehicle or in a place opened to the public. You don’t necessarily have to be under the influence of marijuana, but the use of marijuana suffices.

Facing Criminal Charges

When you are facing criminal charges, no matter how seemingly minor, it is important to quickly secure effective legal representation. Even if you avoid jail and steep fines, a misdemeanor arrest and conviction can stay on your record for years. Do not delay if you are facing criminal charges.

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FAMILY LAW 88: The trial court found that the children did not have an established custodial environment with defendant because, before the separation, he did not have a large role in the children’s lives.

The trial court credited plaintiff’s testimony that, before the parties’ separation, defendant spent minimal time helping to care for the children, so its finding that the children would not have looked to defendant for guidance, discipline, the necessities of life, and parental comfort during that time was not against the great weight of the evidence.

REAL ESTATE 89: RM had not included any language in the deed providing that the property was a joint tenancy with full rights of survivorship, the property instead became a tenancy in common.

RM drafted the deed without seeking counsel and mistakenly believed that, if either she or FK died, the property would fully pass to the surviving tenant. FK’s will provided that if his wife predeceased him—which she did—the personal representative of his estate should sell any residual property that he owned and divide the cash proceeds equally among his surviving children.

FAMILY LAW 83: A trial court can terminate a parent’s rights and permit a stepparent to adopt a child.

A trial court has discretion to terminate a parent’s rights and permit a stepparent to adopt a child when the conditions of MCL 710.51(6) are met. MCL 710.51(6)(b) requires the petitioner to establish that the other parent had the ability to visit, contact, or communicate with the children, and substantially failed or neglected to do so for a period of two years.

PROBATE 53: The trust agreement included an Incontestability Provision.

A settlor’s intent is to be carried out as nearly as possible. Generally, in terrorem clauses are valid and enforceable. However, a provision in a trust that purports to penalize an interested person for contesting the trust or instituting another proceeding relating to the trust shall not be given effect if probable cause exists for instituting a proceeding contesting the trust or another proceeding relating to the trust.

FAMILY LAW 82: Court stated it would terminate the personal protection order (PPO) after the parties present documentation of the initiation of the divorce proceedings.

However, the trial court concluded that these matters should, in fact, be in the province and the jurisdiction of the Family Division and in that respect, having issued a personal protection order, the Court stated it would terminate the personal protection order after the parties present documentation of the initiation of the divorce proceedings.

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