STATE OF MICHIGAN

IN THE CIRCUIT COURT FOR THE COUNTY OF OAKLAND

State of Michigan,

Plaintiff,

vs.

Kevin Aaron Landau,
Defendant.                                                     No.

Arthur H. Landau (P16381)                                           Oakland County Prosecutor
Attorney for Defendant-Appellant                               Attorney for Plaintiff-Appellee
29777 Telegraph Rd. Ste. 2500                                     1200 N. Telegraph Rd.
Southfield, Michigan 48034                                          Pontiac, Michigan 48341

MOTION FOR STAY OF PROCEEDINGS

NOW COMES the Defendant-Appellant, KEVIN AARON LANDAU, by and

through counsel, ARTHUR H. LANDAU, and hereby moves this Honorable Court

pursuant to MCR 7.10 to grant the Motion to Stay Proceedings, and states:

 

1. On or about March 26, 2011, Defendant was arrested by an officer of the o

Bloomfield Township Police Department for Operating While Intoxicated.

 

2. Landau filed several motions that required an evidentiary hearing and presentation of expert testimony.

 

3. Following that hearing, the Court issued its ruling on January 30, 2012, which

resulted in partial denial of Mr. Landau ^j s motion; to wit, 48 ^th Dist Ct. denied Mr.

Landau’s motion to dismiss based upon an unlawful stop and unlawful arrest.

 

4. The Michigan Court Rules require that a request for stay be filed before this

Court, and authorizes this Court to order a stay of proceedings as justice requires.

 

MCR 7.101(H) (4) and (5).

5. Defendant requested such a stay of proceedings orally following the partial denial of his motion to dismiss and motion to suppress, and 48^th Dist Ct directed Defendant to file a written motion requesting a stay of proceedings, which was filed with the 48^th Dist Ct on or about February 10, 2012, but the Motion filed in 48^th Ct. has not yet been decided.
6. The following factors are to be considered in determining whether a stay pending appeal is warranted:

 

The factors to be considered in determining whether a stay is warranted are: (1) the likelihood that the party seeking a stay will prevail on the merits of the appeal; (2) the likelihood that the moving party will be irreparably harmed absent a stay; (3) the prospect that others will be harmed if the court grants the stay; and (4) the public interest in granting the stay- WMATA v. Holiday  182 U.S. App. DC 220, 559 F.2d 841, 843 (DC Cir 1977). To justify the granting of a stay, a movant need not always establish a high probability of success on the merits.

 

Cuomo v. United States Nuclear Regulatory Comm’n. 772 F. 2d. 972, 974 (DC Cir. 1985). A stay may be granted with either high probability of success and some

injury, or vice       Id. This is akin to the same standard employed by courts to

determine whether a preliminary injunction ought to issue:

 

In determining whether to issue a preliminary injunction, a court must consider four factors: (1) harm to the public interest if the injunction issues; (2) whether harm to the applicant in the absence of temporary relief outweighs the harm to the opposing party if relief is granted; (3) the likelihood that the applicant will prevail on the merits; and (4) a demonstration that the applicant will suffer irreparable injury if the relief is not granted. Ins. Comm’r v Arcilio, 221 Mich App. 54 77-78; 561 NW2d 412 (1997). Other considerations surrounding the issuance of a preliminary injunction are whether it will preserve the status quo so that a final hearing can be held without either party having been injured and whether it will grant one of the parties’ final relief before a hearing on the merits.

Campau v McMath 185 Mich App 724 729; 463 NW2d 186 (1990), Thermatool

Corp v Borzym, 227 Mich App 366, 376 (Mich Ct App 1998)

 

7. In this case, Mr. Landau’s vehicle was stopped for weaving within its lane of travel following a 911 call from a person who cannot be located and may be fictitious. The officer specifically denied and disavowed stopping the vehicle on the basis of weaving within the lane of travel, and Mr. Landau supplied case law to both 48^th Dist Ct and this Court, that establishes guidance on this issue. See Memorandum Regarding Motion Hearing Regarding Stop, Probable HGN Suppression and PBT suppression.
8. The arresting officer also claimed that Landau’s vehicle was following the vehicle in front of him too closely, in violation of an unspecified statute that the officer admitted was entirely subjective. He based his decision to stop the vehicle entirely upon this infraction that he could not identity, claiming that he had learned in driver’s education as a teenager that a car should provide an entire car length for every 10 miles per hour. This meant that every vehicle on the roadway was in flagrant violation of the office’s fictitious law, since every vehicle was travelling within a hundred feet of each other. See Id.
9. Michigan courts have ruled several times regarding the provisions of MCL 257.643, which Mr. Landau identified as the statute requiring a motorist to ensure a safe distance between vehicles, but no case has ever held that the officer’s unreasonable interpretation of that statute provides a basis for stopping a motor vehicle; thus, Mr. Landau’s appeal on this issue will be de novo since the appeal is an issue of law and a matter of first impression. On this basis, it is likely that Mr, Landau’s application for leave to appeal will be granted.

 

10. Landau will face irreparable harm without the issuance of a stay pending appeal because he will be forced to proceed to a jury trial that could result in a conviction even though he was subject to an unlawful traffic stop.

 

11. The police and prosecution in this case will face no harm whatsoever by issuance of a stay, and frankly it is in all parties’ best interests that these legal matters be resolved without resort to a jury trial that may prove unnecessary.

 

12. Judicial economy is best served through resolution of these legal issues prior o to a jury trial which will require an extraordinary amount of time, including juror participation.

 

13. Because the legal issues presented in this case are a matter of first impression, the public’s interest weighs in favor of a stay pending appeal. This will provide authority tor future police conduct, protection of the public from unreasonable search and seizure, and (even in the event of an adverse decision guidance to other motorists regarding the meaning and construction of the provisions of MCL 257.643.

 

 

WHEREFORE, Defendant-Appellant respectfully requests that this Honorable Court grant this motion for stay pending appeal, providing Defendant with adequate time to pursue review from this Court on the matters herein presented.

 

Respectfully submitted,

 

 

Arthur H. Landau (P 16381)

Attorney for Defendant-Appellant

29777 Telegraph Rd., Ste. 2500

Southfield, Michigan 48034

Dated: February 22, 2012

STATE OF MICHIGAN

IN THE CIRCUIT COURT FOR THE COUNTY OF OAKLAND

 

 

State of Michigan,

Plaintiff,

48^th Dist. Ct.

Vs.                                                                                                  No. 11-20227

 

Kevin Aaron Landau,                                                                  Cir. Ct.
Defendant.                                                     No.

Arthur H. Landau (P16381)                                           Oakland County Prosecutor

Attorney for Defendant-Appellant                               Attorney for Plaintiff-Appellee

29777 Telegraph Rd. Steu 2500                                    1200 N. Telegraph Rd.
Southfield, Michigan 48034                                          Pontiac, Michigan 48341

 

PROOF OF SERVICE

 

Arthur H. Landau, Attorney for Defendant-Appellant, on this 22^nd day of February, 2012, served the MOTION FOR STAY OF_PROCEEDINGS. upon the Oakland County Prosecutor’s Office, located at 1200 N. Telegraph Rd., Pontiac, Michigan 48341, by personal service.

 

I DECLARE THAT THE STATEMENTS ABOVE ARE TRUE TO THE BEST OF MY INFORMATION, KNOWLEDGE AND BELIEF.

 

Arthur H. Landau