consent exception in Michigan

2017The consent exception to the warrant requirement allows a search and seizure when consent is unequivocal, specific, and freely and intelligently given.” Lavigne v Forshee, 307 Mich App 530, 538 ; 861 NW2d 635 (2014) (quotation marks and citation omitted).

2017The consent exception to the warrant requirement allows a search and seizure when consent is unequivocal, specific, and freely and intelligently given.” Lavigne v Forshee, 307 Mich App 530, 538 ; 861 NW2d 635 (2014) (quotation marks and citation omitted).

2001People v Kaigler, 368 Mich 281, 294 ; 118 NW2d 406 (1962); People v Malone, 180 Mich App 347, 355 ; 447 NW2d 157 (1989); see generally Schneckloth v Bustamonte, 412 US 218 ; 93 S Ct 2041 ; 36 L Ed 2d 854 (1973).

2001People v Kaigler, 368 Mich 281, 294 ; 118 NW2d 406 (1962); People v Malone, 180 Mich App 347, 355 ; 447 NW2d 157 (1989); see generally Schneckloth v Bustamonte, 412 US 218 ; 93 S Ct 2041 ; 36 L Ed 2d 854 (1973).

2025“The consent exception to the warrant requirement allows a search and seizure when consent is unequivocal, specific, and freely and intelligently given.” People v Frohriep, 247 Mich App 692, 702 ; 637 NW2d 562 (2001) (quotation 3 As a preliminary matter, the prosecution has not raised whether defendant had standing to challenge the warrantless search of the basement under the Fourth Amendment.

2025“The consent exception to the warrant requirement allows a search and seizure when consent is unequivocal, specific, and freely and intelligently given.” People v Frohriep, 247 Mich App 692, 702 ; 637 NW2d 562 (2001) (quotation 3 As a preliminary matter, the prosecution has not raised whether defendant had standing to challenge the warrantless search of the basement under the Fourth Amendment.

2022In these cases, defendants only argued that fingerprinting was appropriate under Terry v Ohio, 392 US 1 (1968), and that Harrison consented to fingerprinting.

2022In these cases, defendants only argued that fingerprinting was appropriate under Terry v Ohio, 392 US 1 (1968), and that Harrison consented to fingerprinting.

2014LEGAL STANDARDS Both the United States and Michigan constitutions “guarantee the right of persons to be secure against unreasonable searches and seizures.”27 To comply with this requirement, police officers must have a warrant to conduct a search or must establish that their conduct was “within one of the narrow, specific exceptions to the warrant requirement.”28 If police officers obtain evidence while violating the Fourth Amendment, the evidence is generally inadmissible in criminal proceedings.29 The consent exception to the search warrant requirement allows officers to conduct a search “wh

2014LEGAL STANDARDS Both the United States and Michigan constitutions “guarantee the right of persons to be secure against unreasonable searches and seizures.”27 To comply with this requirement, police officers must have a warrant to conduct a search or must establish that their conduct was “within one of the narrow, specific exceptions to the warrant requirement.”28 If police officers obtain evidence while violating the Fourth Amendment, the evidence is generally inadmissible in criminal proceedings.29 The consent exception to the search warrant requirement allows officers to conduct a search “wh

2001People v Kaigler, 368 Mich 281, 294 ; 118 NW2d 406 (1962); People v Malone, 180 Mich App 347, 355 ; 447 NW2d 157 (1989); see generally Schneckloth v Bustamonte, 412 US 218 ; 93 S Ct 2041 ; 36 L Ed 2d 854 (1973).

2001People v Kaigler, 368 Mich 281, 294 ; 118 NW2d 406 (1962); People v Malone, 180 Mich App 347, 355 ; 447 NW2d 157 (1989); see generally Schneckloth v Bustamonte, 412 US 218 ; 93 S Ct 2041 ; 36 L Ed 2d 854 (1973).

2024As discussed, to establish the consent exception to the warrant requirement, evidence must show that the officers received consent that “is unequivocal, specific, and freely and intelligently given.” See Galloway, 259 Mich App at 648 .

2016The consent exception to the search warrant requirement allows officers to conduct a search “when consent is unequivocal, specific, and freely and intelligently given.” People v Galloway, 259 Mich App 634 ; 675 NW2d 883 (2003).

2023People v Farrow, 461 Mich 202, 206 ; 600 NW2d 634 (1999). -4- 486; Brown, 422 US at 602 ; Royer, 460 US at 507-508 .

2014LEGAL STANDARDS Both the United States and Michigan constitutions “guarantee the right of persons to be secure against unreasonable searches and seizures.”27 To comply with this requirement, police officers must have a warrant to conduct a search or must establish that their conduct was “within one of the narrow, specific exceptions to the warrant requirement.”28 If police officers obtain evidence while violating the Fourth Amendment, the evidence is generally inadmissible in criminal proceedings.29 The consent exception to the search warrant requirement allows officers to conduct a search “wh

2022Unger, 278 Mich App at 256 .

2022Unger, 278 Mich App at 256 .

2022In People v Matuszak, 263 Mich App 42, 59 ; 687 NW2d 342 (2004), this Court discussed, in the context of reviewing an ineffective-assistance-of- counsel claim, defense counsel’s failure to request a consent instruction in a case in which the defendant was charged with CSC-I for engaging in sexual penetration accomplished by force or coercion and causing personal injury.

2022In People v Matuszak, 263 Mich App 42, 59 ; 687 NW2d 342 (2004), this Court discussed, in the context of reviewing an ineffective-assistance-of- counsel claim, defense counsel’s failure to request a consent instruction in a case in which the defendant was charged with CSC-I for engaging in sexual penetration accomplished by force or coercion and causing personal injury.

2018Because “counsel cannot be considered ineffective for failing to raise a futile objection,” Stevens, 306 Mich App at 628 , counsel was not ineffective in failing to seek an instruction under M Crim JI 20.27 with regard to the CSC-I charge. -5- We acknowledge that defendant was also charged with, and convicted of, CSC-III pursuant to MCL 750.520d(1)(b), and a consent-to-penetration defense could have been used to negate the element of force or coercion for that charge.

2018Because “counsel cannot be considered ineffective for failing to raise a futile objection,” Stevens, 306 Mich App at 628 , counsel was not ineffective in failing to seek an instruction under M Crim JI 20.27 with regard to the CSC-I charge. -5- We acknowledge that defendant was also charged with, and convicted of, CSC-III pursuant to MCL 750.520d(1)(b), and a consent-to-penetration defense could have been used to negate the element of force or coercion for that charge.

2015Id. at 156 . *655 In 2011, SORA was amended to include “a consent exception .. . that provides some youthful offenders relief in situations involving consensual sex acts.” Temelkoski, 307 Mich App at 261 .

2014Dipiazza, 286 Mich App at 147 , citing Ayres, 239 Mich App at 14-15 . 7 For purposes of SORA, defendant is considered to have been “convicted” of CSC-II under MCL 750.520c; because the complainant in this case was not 16 at the time of the offense (she was 12), the consent exception of MCL 28.728c(3) and (14)(c) does not apply to defendant. 8 Michigan Public Sex Offender Registry <http:// communitynotification.com/ cap_main.php?office=55242/> (accessed August 1, 2014) [http://perma.cc/5WBM-222J].

2026Defendant’s appellate counsel argues that there was no tactical reason for defendant to not testify given that “[h]e, and he alone, could testify to consent.” But “the ultimate decision whether to testify at trial remains with the defendant.” People v Bonilla-Machado, 489 Mich 412, 419 ; 803 NW2d 217 (2011).

2026Defendant’s appellate counsel argues that there was no tactical reason for defendant to not testify given that “[h]e, and he alone, could testify to consent.” But “the ultimate decision whether to testify at trial remains with the defendant.” People v Bonilla-Machado, 489 Mich 412, 419 ; 803 NW2d 217 (2011).

2026GOOD FAITH EXCEPTION Relying on federal precedent, our Supreme Court adopted the good-faith exception to the exclusionary rule in Goldston, 470 Mich at 541 .

2025Id. at 127 .9 The applicable statute provides, in relevant part, as follows: Abramsky was not paying attention during the evaluation and appeared to be on drugs, but again cites no record evidence to support these allegations. 8 Arguably, defendant’s argument could be considered an argument that the court erred by failing to allow him to raise a consent defense.

2023A waiver “is the intentional relinquishment of a known right that may be shown by express declarations or by declarations that manifest the parties’ intent and purpose.” Reed Estate v Reed, 293 Mich App 168, 176 ; 810 NW2d 284 (2011) (quotation marks and citations omitted).

2023A waiver “is the intentional relinquishment of a known right that may be shown by express declarations or by declarations that manifest the parties’ intent and purpose.” Reed Estate v Reed, 293 Mich App 168, 176 ; 810 NW2d 284 (2011) (quotation marks and citations omitted).

2023People v Farrow, 461 Mich 202, 206 ; 600 NW2d 634 (1999). -4- 486; Brown, 422 US at 602 ; Royer, 460 US at 507-508 .

2023The doctrine of equitable estoppel arises when: (1) a party by representation, admissions, or silence, intentionally or negligently induces another party to believe facts; (2) the other party justifiably relies and acts on this belief; and (3) the other party will be prejudiced if the first party is permitted to deny the existence of the facts. [Williamstown Twp v Sandalwood Ranch, LLC, 325 Mich App 541, 553 ; 927 NW2d 262 (2018) (citation omitted).] “Equitable estoppel is not an independent cause of action, but instead a doctrine that may assist a party by precluding the opposing party from a

2023Wong Sun, 371 US at 2 The consent exception to the warrant requirement allows for a warrantless search and seizure when consent, absent any actual or implied duress or coercion, is unequivocal, specific, voluntary, and intelligently given.

2023People v Farrow, 461 Mich 202, 206 ; 600 NW2d 634 (1999). -4- 486; Brown, 422 US at 602 ; Royer, 460 US at 507-508 .