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Standing to Contest an Illegal Search
Grandparenting Time

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Standing to Contest an Illegal Search

Consider the following: The police enter your home without a warrant and they improperly seize evidence.  Then they charge you with a crime based upon that illegally seized evidence.  Your lawyer will file a Motion to Suppress the illegally seized evidence and ask the trial court to dismiss the case because of the violation of your right against unreasonable search and seizure. (4th Amendment). 

Now change the example above - the illegal seizure is not in your home but at your neighbors house and you just happen to be visiting; how about your friend's home or a relative's car?  Even though the search is illegal in each case the result in any individual case will depend on whether you have standing to contest the illegal seizure. 

In order to contest the seizure of property taken by police after a search of a home, apartment or car a defendant must have "standing."  If you do not have standing illegally seized evidence may be used against you. 

What is standing?  

To have standing, a party must have a legally protected interest which is in jeopardy of being adversely affected. Standing requires a demonstration that the party's substantial interest will be detrimentally affected in a manner different from the citizenry at large. The issue of standing applies in criminal as well as civil proceedings.

Who has standing to contest an illegal seizure?

The state and federal courts have consistently applied a two part analysis in determining whether an individual has standing to object to an unreasonable search under the Fourth Amendment.  The first consideration is whether the defendant by his conduct has exhibited a subjective expectation of privacy.  The second consideration is whether the individual's expectation of privacy is one that society is prepared to recognize as reasonable.  The courts have not identified any particular factor as controlling.  Under the totality of the circumstances approach the facts and circumstances which the courts have considered, include: the nature and purpose for which the area searched was used, whether the defendant was present at the time of the search, whether the defendant owned the premises or had other property interests in the area searched, whether the defendant regularly visited the area or had spent a considerable amount of time in the area, actions of the defendant to exclude access to the area by third parties, the ability of the defendant to exclude others from the area searched, societal values or interests in protecting the privacy interest and the intent of the Framers of the Fourth Amendment.

Factors to consider:

  • Whether the you have a property or possessory interest in the thing seized or the place searched;

  • Whether you have a right to exclude others from that place;

  • Whether you exhibited a subjective expectation that the place would remain free from governmental invasion;

  • Whether you took normal precautions to maintain your privacy;

  • Whether you were legitimately on the premises; and

  • Whether the you were present at the place searched "for a commercial purpose" (no standing) or was there as an "overnight guest" (standing) with the knowledge and permission of an identifiable host.

Examples:

  • The owner, or a borrower of vehicle with the owner's permission (i.e., a person in lawful possession), has standing to challenge the search of the vehicle. 

  • A passenger in a vehicle that he neither owns nor leases lacks standing to object to a search of areas within the vehicle, such as the glove compartment, the trunk, or underneath the seat.  But, the passenger as well as the driver has standing to object to the basis for a vehicle's initial stop or detention.

  • One who steals a car or who is simply an occupant of a stolen car or is caught driving a stolen vehicle that is later searched, has no standing to challenge the later search of that car.

  • An overnight guest in a residence does have standing to contest an unlawful search.

  • Simple, casual visitors in a place being searched do not normally have standing.  

  • A Babysitter during the time he or she is engaged in babysitting activities has standing.  

  • There is no expectation of privacy in a duffle bag left in an apartment laundry room open to anyone, even though placed out of the way on a high shelf.  But the owner of a gym bag the defendant kept under his girlfriend's bed in her apartment had standing to challenge the search of that gym bag. 

There are hundreds of other examples - each one another reason to consult with an experienced criminal lawyer when dealing with a search by police.


Grandparenting Time

During some custody and divorce cases one or both sets of grandparents express an interest in seeing the grandchildren on a regular basis.  Usually that's not a problem because many parents prefer to use their parent(s) as sitters as opposed to a daycare for reasons related to cost, safety and convenience and many parents want their children to have a close relationship with their grandparents.

When there is a dispute the grandparents, under certain and very limited circumstances, may petition for a grandparenting time order where it has otherwise been denied by the grandchildren's parents.  What are those circumstances?

Under the law — Public Act 542 of 2004 — before a grandparenting order can be entered, the grandparent must prove by a preponderance of the evidence that visitation is in the child's best interests and that denial of visitation may harm the child's health.

Under the new statute, grandparents have standing, (i.e. can file a case) when: 

1) The grandchild's parents have a pending divorce case or have been divorced; 

2) The grandchild's "parent who is a child of the grandparents is deceased"

3) The grandchild's parents were never married but paternity has been established; 

4) The grandchild is in the legal custody of someone other than his or her parent; and 

5) During the past year, the grandparent has provided "an established custodial environment" for the grandchild. 

Once standing has been established, in order to overcome a fit parent's decision to deny visitation, the grandparent must establish by a preponderance of the evidence that denial of visitation with their grandchild "creates a substantial risk of harm to the child's mental, physical, or emotional health."   Finally, the grandparents must convince the court that a grandparenting order is in the best interests of the grandchild.

The bottom line:  In Michigan if the parent or parents are fit parents - the grandparent's time with the children is a decision for the parents alone.  The term "fit parent" is usually determined by whether a parent has been the subject of an abuse or neglect petition and/or has a serious criminal history.

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