In The News

In The News

Friday, July 22, 2016

How to combat “creative policing”? With “creative lawyering” of course!

By Michael Nichols
Categories: Michael J. Nichols

The Michigan Court of Appeals issued a published opinion in July, 2016 that reversed a trial court’s ruling to suppress evidence, when an officer admitted that it would have taken him “5 seconds” to verify that a driver’s paper license plate was valid. Instead, the Flint Township Police Officer’s Act of stopping a vehicle, on grounds that it lacked the proper metal plate attached to the back or a temporary paper substitute, will not be deterred through the harsh sanction of a suppression ruling. Mike Nichols, a Michigan Criminal/DUI attorney raised concerns about the timing of the opinion. Nichols says “we live in a time right now where there is so much friction between law enforcement and citizens, that allowing police conduct like this with a published opinion, that is bound to generate talk amongst the defense bar and most likely citizens is just a bad thing and will only enhance our suspicion of law enforcement.”

In the Simmons case, the Court held that the officer acted reasonably when he pulled over Mr. Simmons and continued to detain him, despite the fact that he only needed about 5 seconds to attempt to read the paper plate that was affixed in the rear window of Mr. Simmons car. The Court held that a traffic stop is the equivalent of a seizure, citing to People v Williams, 236 Mich App 610, 612 n 1 (1999). The Court also held: For a traffic stop to be reasonably related in scope to the circumstances justifying the stop, the driver should be “detained only for the purpose of allowing an officer to ask reasonable questions concerning the violation of law and its context for a reasonable period.” Williams, 472 Mich at 315. The Court also cited to MCL 257.225(2) and held that a license plate must be “clearly visible” and the officer testified that the writing on the plate was “very dim.” Therefore, because the writing on the paper plate was not "clearly visible" the officer's conduct was reasonable even if the plate was valid otherwise.

The critical fact was the testimony from the officer that he could not read the plate “clearly.” The Court said: “Officer Cavett could not read the plate from his car, nor could he make out the plate from 3 or 4 feet away in the dark.” (Slip Op. at p 3) . The frustrating aspect of the case is that it seems to be in contrast to the prior holdings of the Supreme Court in a case called Hein v North Carolina in which the Court held that a mistake by a law enforcement officer about the facts or the law must be reasonable in order for any violation of a driver or an individual’s right to be free of an unreasonable seizure. It is critical to note 2 things: the ability to present the positive facts that would refute any claim by the officer that his mistake was reasonable and limiting the holding of the Simmons case to the unique circumstances – a plate that was written with very dim and hard-to-read ink. The plate may have been illegal because it was not “clearly” visible – but the appellate record lacks any display or photo of what the plate looked like. In other words, the temporary plate that you have on your car may be perfectly visible even if the ink is not much darker than that on the car of Mr. Simmons. For the lawyers who stay on the cutting edge, are creative in asserting your rights and are committed to results, call the Nichols Law Firm at 517.432.9000 or email Mike Nichols at mnichols@nicholslaw.net

Need a Lawyer?

Get an online consultation or call 517-432-9000

Online Consultation »

Do the Medicines You Take Criminalize Your Driving?

Family Law encompasses a broad range of issues that occur between family members. Our team, led by Colline DeVries-Burd, can help you in all of these areas...

More »

Personal Injury / Traumatic Brain Injury Experts

Traumatic Brain Injury (TBI) is one of the most frightening and serious forms of injury...

More »

Criminal Defense

We are skilled, experienced and committed to resuts in both the serious and misdemenor criminal case

Personal Injury

We have successfully represented clients with serious and traumatic injuries

What our clients are saying

more testimonials »

Peer Recognition

Mike Nichols is a national leader in drunk driving defense. He is a member of the Forensic Committee and Michigan delegate to the National College for DUI Defense. He is also a Sustaining Member of the College. Nichols is also a founding member of the Michigan Association of OWI Attorneys; a member of the American Chemical Society; an associate member of he American Academy of Forensic Science, Adjunct Professor of Forensic Evidence in Criminal Law and OWI Law and Practice at Cooley Law School. He is also author of the West OWI Practice book and several chapters in other books on science and the law.

Mike Nichols is recognized by his peers in Michigan as a “SuperLawyer” in DUI/Criminal Defense. Nichols has also been asked to speak at conferences by groups such as the NCDD; Various Bar Associations in other states.