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141837 The People of the State of Michigan, Gregory J. Babbitt- People v Moreno (Angel)

The People of the State of Michigan,
Gregory J. Babbitt
(Appeal from Ct of Appeals)
(Ottawa – Post, E.)
Angel Morena, Jr.,
Craig W. Haehnel


​While on patrol in the early morning of December 30, 2008, Holland police officer Troy DeWys observed an occupied car parked on the street; when he returned to issue a parking ticket, there was no one in the car. DeWys determined that the car was registered to Shane Adams, who had several outstanding warrants. DeWys saw a car pulling out of a driveway at a nearby home; the driver got out of his car and told DeWys that his girlfriend, and some minors, were inside drinking alcohol. Asked if Adams was in the house, the driver indicated that he was unsure.

DeWys called for backup; a second officer arrived. Both police officers were in full police uniform. They approached the home, and knocked on the front and back doors; DeWys identified himself as a police officer. Peering through windows, the officers saw about a dozen people running around and hiding. About 15 minutes later, Mandy McCarry opened the front door. McCarry admitted that under-age drinking was going on in the house and that she knew Shane Adams, but denied that he was in the home. She refused to allow the officers into the house without a warrant. At this point, the officers secured the back door to the home; when three other officers arrived at the scene, the house was surrounded. DeWys reported that, when standing at the open door, he smelled a strong odor of intoxicants and burnt marijuana.

When DeWys informed McCarry that officers were entering to secure the house while they obtained a search warrant, Angel Moreno, Jr., came to the door and refused to allow the officers to enter, demanding that they get a search warrant first. He told them to get off the porch and attempted to close the door. An officer placed his shoulder against the door to prevent it from being closed; a struggle ensued between Moreno and the officers. DeWys was injured in the struggle, but Moreno was eventually subdued, removed from the home, and arrested. Officers then entered to secure the house. After obtaining the search warrant, the officers discovered an ounce of marijuana and some pills.

Moreno was bound over for trial on one charge of resisting and obstructing a police officer, and one charge of resisting and obstructing a police officer, causing injury. MCL 750.81d. The statute states that “an individual who assaults, batters, wounds, resists, obstructs, opposes, or endangers a person who the individual knows or has reason to know is performing his or her duties is guilty of a felony punishable by imprisonment for not more than 2 years or a fine of not more than $2,000.00, or both.”

Moreno filed a motion to quash based on the illegal entry of officers into the home. The trial court agreed that the officers’ entry into the home was illegal, but denied his motion. Moreno sought reconsideration, arguing that he had the right to act in self-defense because the officers used excessive force. The trial court denied that motion.

The Court of Appeals granted leave to appeal, and affirmed the lower court in an unpublished per curiam opinion. Although the entry was illegal, Moreno had no right to resist or obstruct the police officers, the appellate court said: “[T]he legality of the officers’ conduct in attempting to enter into the home does not serve to determine the applicability of MCL 750.81d.” The statute precludes any claim of self-defense, even in the case of an unlawful entry, the court said. The Court of Appeals also rejected Moreno’s claim that his due process rights had been violated by a lack of notice because, Moreno argued, no reasonable person would have been aware that he could be charged under MCL 750.81d for defending his home against an aggressive police officer acting unlawfully and without a warrant. The statute clearly provides that a person cannot assault a police officer who is performing his duties; Moreno’s attempt to hinder the officers is “precisely the type of conduct prohibited by the statute,” the appellate court observed. As a result, the Court of Appeals held, MCL 750.81d “provided sufficient notice of the type of conduct it sought to preclude and cannot be construed as being void for vagueness when applied to defendant’s conduct.” Moreno appeals.