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Michigan Court Of Appeals Rules Warrantless Entry For 'welfare Check' Was Legal

Court Allows Evidence Collected During 'Welfare Check'

MIRS NEWs - February 6, 2013 - http://www.mirsnews....le.php?gid=4016

Police can collect evidence gathered during the "welfare check" of a personal residence for later prosecution, the Court of Appeals ruled today in a split decision.

Today's decision means the Oakland County Prosecutor may continue with a charge against Eric HILL of Hazel Park for growing marijuana in a closet inside his house. Both the district and circuit courts had thrown out the charge on the basis that the police's collection of the marijuana was a product of an unconstitutional search.

Hazel Park police were called to Hill's house by a neighbor, who was concerned that something was wrong with Hill.

Police Officer Mike EMMI said the neighbor alerted him that she had not seen or heard from the defendant in days. Hill's automobile was covered with leaves. Mail was uncollected in his mailbox. Lights were on in his house and his cats were looking out the window.

Hill didn't answer the door when police knocked repeatedly and didn't answer when Emmi opened an unlocked window and yelled inside. The police then entered the house. As part of their search for Hill, they heard a humming sound coming from inside a closet door. They opened it up and saw it was coming from a heater that was keeping some marijuana plants warm.

In a 2-1 opinion the majority ruled that exemptions to illegal search and seizure include searches conducted during "welfare checks" since police are conducting part of their job to check-up on the well-being of people who may be in trouble.

"Imagine that the police officers had decided against entering defendant's house and that defendant was inside unconscious or otherwise unable to communicate and in critical need of medical attention," the majority wrote.

"In such a scenario, if defendant later died due to lack of timely aid, the community uproar over the officers' failure to enter the home would be deafening."

The court ruled that the type of police conduct by Emmi is not anything that should be deterred. He did not engage in any misconduct and it does not appear that either he or his partner engaged in a "deliberate, reckless or grossly negligent disregard for the Fourth Amendment," reads the opinion signed by appellate judges William MURPHY and William WHITBECK.

In her dissenting opinion, Appellate Judge Jane MARKEY wrote that the evidence tells her Emmi conducted an unwarranted search of Hill's house based on the information from a person of "unknown credibility" who lived "several houses away."

She said the Fourth Amendment to the U.S. Constitution outlaws unreasonable government searches and seizures. In her opinion, this was one and a "flagrant" violation of the amendment.

"Officer Emmi had no specific and articulable facts to support a conclusion that (1) someone was in the home and (2) in need of immediate assistance," Markey wrote. "(T)he facts of this case (are) no different from what officers everywhere would find day in and day out while people were away from their home."