No Per Se OV 19 Score for Drug Possession During Jail Intake: Particularized Security‑Threat Findings Required

Introduction

In People of Michigan v. Curtis Allen Morris (Mich. July 9, 2025), the Michigan Supreme Court vacated the Court of Appeals’ affirmance of a sentencing court’s decision to score 25 points under Offense Variable (OV) 19 for conduct allegedly “threaten[ing] the security of a penal institution” and remanded for a fact‑specific reassessment. The case presents a focused but consequential question: when, if ever, does mere possession of a small quantity of a controlled substance by an arrestee during jail intake warrant a 25‑point OV 19 score under MCL 777.49(a)?

The defendant, Curtis Allen Morris, was brought to the Branch County Jail after arrest for absconding from parole. During intake, a small baggie fell from his pants; it contained approximately 0.33 grams of methamphetamine. Although he was separately charged with furnishing contraband to prisoners, that charge was dismissed under a global plea in which Morris pled guilty to an earlier, unrelated possession-of-methamphetamine offense. At sentencing on that unrelated offense, the trial court assessed 25 points under OV 19 based on the view that “any” dangerous drug entering a facility justifies the score. The Court of Appeals affirmed. The Supreme Court has now vacated that judgment, holding that OV 19 cannot be applied categorically in this scenario and that trial courts must articulate particular facts showing an actual, context‑specific threat to the security of the penal institution.

Summary of the Opinion

The Supreme Court vacated the Court of Appeals’ judgment and remanded to the Branch Circuit Court to reconsider the OV 19 scoring and issue a reasoned opinion explaining whether, and precisely how, the defendant’s conduct threatened the security of the jail.
Key holding: There is no categorical rule that any presence of a controlled substance during jail intake warrants a 25‑point score under MCL 777.49(a). Context and “particular facts” are required to demonstrate a real, not hypothetical, threat to institutional security.
The Court distinguished prior cases that involved smuggling or additional aggravating conduct (e.g., deliberate delivery of heroin to a prisoner, retaliatory assault), finding them inapposite to a bare possession scenario during intake.
The Court reaffirmed that OV 19 may be scored for post‑offense conduct and that a jail’s intake area is part of a “penal institution.”
If, on remand, OV 19 should have been scored at zero, the defendant must be resentenced under People v Francisco. If the trial court again assigns 25 points, it must explain how the particular facts satisfy MCL 777.49(a) in light of People v Dixon’s context requirement.
Dissent: Justice Bernstein (joined by Justice Zahra) would have denied leave and upheld the scoring, emphasizing the inherently dangerous nature of methamphetamine, and critiquing the majority’s lack of independent statutory analysis and its remand instructions.

Detailed Analysis

1. Precedents and Authorities Cited

People v Dixon, 509 Mich 170 (2022): The anchor precedent. The Court reversed a 25‑point OV 19 score based on mere constructive possession of a cell phone in prison. Without facts beyond possession, the “threat” was only hypothetical. Dixon established that context matters and that OV 19 must not be rendered “boundless.” It also introduced the requirement that courts articulate how the “particular facts of the case” show an actual threat to institutional security.
People v Deweerd, 511 Mich 979 (2023): Summarily reaffirmed Dixon’s admonition that OV 19 cannot be applied without careful, case‑specific analysis; trial courts must make case‑by‑case determinations.
People v Dickinson, 321 Mich App 1 (2017): Upheld 25 points where a visitor smuggled and delivered 5.68 grams of heroin “into the confines of the prison.” The Court here explains Dickinson involved deliberate smuggling and delivery—conduct “beyond the drug possession”—making it inapt to mere intake possession.
People v Carpenter, 322 Mich App 523 (2018): Upheld 25 points where the defendant sought to smuggle drugs into jail and then retaliatorily assaulted an inmate he suspected of reporting him. Again, qualitatively different conduct than an arrestee’s small‑quantity possession discovered during intake.
People v Smith, 488 Mich 193 (2010): OV 19 may account for conduct occurring after the sentencing offense is completed; therefore, post‑offense conduct at intake can be considered in scoring.
People v Hardy, 494 Mich 430 (2013): Standard of review: factual findings at sentencing are reviewed for clear error and must be supported by a preponderance of the evidence; application of those facts to the statutory scoring criteria is reviewed de novo.
People v Francisco, 474 Mich 82 (2006): Remedy: if the guidelines were incorrectly scored, and the correction changes the applicable guidelines range, the defendant is entitled to resentencing.
Statutes: MCL 777.49(a) (25 points where conduct “threatened the security of a penal institution or court”); MCL 801.263(1) (furnishing contraband to prisoners—charge here dismissed per plea); MCL 333.7403(2)(b)(i) (underlying possession conviction); definitional statutes confirming that a jail is a “penal institution” (MCL 801.251(4), MCL 141.472(c), MCL 791.262(c)).
Unpublished reference: People v Durr (COA Nov. 13, 2024) noted that OV 19 focuses on whether conduct threatens security, not necessarily where the conduct occurs; location remains relevant but not dispositive.

2. The Court’s Legal Reasoning

OVs tailor sentences to case‑specific facts. Offense Variables are designed to ensure that the guidelines range reflects the particular facts the Legislature deems relevant. OV 19 at 25 points applies only if the defendant’s conduct actually threatened a penal institution’s security.
Two‑part requirement for OV 19(a). The trial court must find: (1) the defendant engaged in some conduct; and (2) that conduct threatened the security of the penal institution. Not every risky or undesirable act suffices; the threat must be real and tied to the circumstances.
Context, not categorical rules. Echoing Dixon, the Court rejects “boundless” applications of OV 19. A categorical proposition that “any” dangerous drug inside a facility equals a 25‑point threat would sweep in routine intake discoveries—including small amounts of prescription pain medication or medical marijuana—and untether scoring from concrete, case‑specific risk.
Distinguishing prior drug/penal cases. Dickinson and Carpenter involved deliberate smuggling into the facility and additional aggravating conduct (delivery to an inmate, violence), none of which is present here. Jail intake is a controlled setting designed precisely to detect and intercept contraband before it can disseminate to more vulnerable areas; that context materially reduces the inference that mere possession equals a security threat.
No per se exclusion either. The Court also rejects the defense’s plea for a counter‑categorical rule: intake‑related drug possession can, in some circumstances, threaten institutional security. But whether it does is a question of fact and context in each case.
Intake area is part of a “penal institution.” The Court squarely holds that a jail’s intake is within the ambit of “penal institution” as that term is used in MCL 777.49(a). Moreover, OV 19 focuses on threatening the institution’s security; the conduct need not occur strictly “inside” to qualify.
Legislative calibration signals a high bar for 25 points. The opinion juxtaposes OV 19’s 25‑point level with other OVs that also score 25 points (supporting terrorism, life‑threatening injury, shootings/stabbings, endangering large numbers of victims, criminal sexual penetration). That comparison reinforces that 25 points should be reserved for conduct evidencing a serious, articulable security threat—not merely hypothetical risk.
Procedural directives on remand. The trial court must accept additional briefing, hold a hearing if necessary, and issue an opinion that either (a) assigns zero points (followed by resentencing under Francisco), or (b) explains in detail how the particular facts justify assigning 25 points consistent with Dixon.

3. How This Decision Fits with, and Refines, Prior Law

Extending Dixon’s “context matters” to drug possession at intake. Dixon involved a cell phone; Morris clarifies that the same analytical framework governs drug possession discovered during intake. The type of item, the setting, the quantity, the manner of concealment, and any aggravating circumstances all matter.
Clarifying the limits of Dickinson and Carpenter. Morris cabins those Court of Appeals precedents to cases involving purposeful smuggling and additional conduct that, by its nature, escalates institutional risk. Mere intake possession is different in both setting and culpability.
Reaffirming permissibility of post‑offense conduct in OV 19. Consistent with Smith, the Court confirms that the conduct at intake may be used to score OV 19 even when sentencing is for a different, earlier offense. The remand here is about adequacy of the threat finding, not about temporal eligibility.

4. Practical Impact and Guidance

Morris is likely to recalibrate how Michigan trial courts approach OV 19 in custodial settings, especially during intake.

For trial courts: No more boilerplate statements that “any drug in a jail” suffices. Courts must make explicit, record‑supported findings connecting the actual circumstances to a concrete security threat. Consider:
- Quantity, potency, and form of the substance (e.g., powder vs. pills; volatility; overdose risks to staff or detainees).
- Manner and purpose of possession (incidental possession at arrest vs. intentional smuggling to distribute or ingest inside).
- Security context at the moment of discovery (controlled intake area versus presence of other detainees; handcuffed; immediate officer control; availability to others).
- Aggravating conduct beyond mere possession (efforts to pass contraband to others, resist or conceal during search, tamper with detection, create a disturbance, or other actions that undermined security protocols).
- Actual access or exposure risk (e.g., whether others could readily obtain or be harmed by the contraband).
For prosecutors: Build the record with specific facts showing why the possession, given the circumstances, created a real security threat (not just that drugs are “dangerous” in the abstract). Link the facts to institutional safety concerns (risk of distribution, violence, overdose, disruption of order, or subversion of security controls).
For defense counsel: Object to categorical reasoning. Emphasize the controlled nature of intake, the small quantity, lack of distributional intent, lack of access to others, and the immediacy of officer control. Request explicit findings and, if warranted, a zero‑point score.
For appellate courts: Review for clear error on factual determinations and de novo on the legal application, ensuring that trial courts connect facts to an actual security threat within Dixon’s framework.

5. Addressing the Dissent

Justice Bernstein would uphold the 25‑point score, emphasizing that methamphetamine is categorically dangerous, akin to the majority’s “gun” analogy in Dixon as a plainly threatening item. The majority, however, does not declare methamphetamine nonthreatening; rather, it insists that the degree of threat must be assessed in context and proven on the record. Under Morris, the “what” (methamphetamine) matters—but so does the “how,” “where,” and “to what effect.” The dissent also faults the majority for relying on hypotheticals and not parsing the text further. The majority’s response is structural rather than purely textual: the Legislature’s scheme and Dixon’s logic constrain 25‑point scores to proven, non‑hypothetical threats, and the comparison to other 25‑point OVs underscores that high bar.

Complex Concepts Simplified

Offense Variables (OVs): Factors the Legislature has identified to tailor sentencing to case specifics. Each OV has multiple scoring levels depending on what the defendant did or intended.
OV 19 (MCL 777.49): Addresses threats to institutional security and interference with the administration of justice. The 25‑point level at issue applies when the defendant’s conduct threatens the security of a penal institution or court.
“Threatened the security” versus “hypothetical risk”: A real threat must be grounded in the particular facts and setting; theoretical dangers of an item alone (e.g., “drugs are dangerous”) are insufficient without a fact‑based link to security disruption or harm in the actual circumstances.
Standards of review: Factual findings at sentencing must be supported by a preponderance of the evidence and are reviewed for clear error; whether those facts meet the statutory scoring criteria is reviewed de novo (fresh legal review).
Post‑offense conduct: OV 19 can consider acts that occurred after the offense of conviction (e.g., conduct at intake), as long as they are proven by a preponderance and fit the statutory criteria.
Resentencing (People v Francisco): If an OV was incorrectly scored and correcting it changes the applicable guidelines range, the defendant is entitled to be resentenced using the correct range.

What the Trial Court Must Do on Remand

Accept additional briefing and, if necessary, conduct an evidentiary hearing.
Make explicit factual findings about the intake setting and the defendant’s conduct beyond mere possession.
Explain how those facts, in context, did or did not threaten the jail’s security.
If the court reassigns 25 points under MCL 777.49(a), it must articulate how “the particular facts of the case” satisfy Dixon’s standard.
If the correct score is zero, resentence the defendant consistent with Francisco because the guidelines range would change materially (from 19–38 months to 5–23 months, per the opinion’s calculations).

Likely Future Effects

More granular records at sentencing: Prosecutors and courts will develop fuller records about the intake environment, availability of contraband to others, intent to smuggle, and specific security risks.
Fewer categorical OV 19 scores: Trial courts will avoid blanket assertions that any contraband automatically triggers 25 points.
Differentiation by substance, quantity, and context: Some intake possession—especially in large amounts, with distribution packaging, evasive concealment, or in proximity to other detainees—may still warrant 25 points if the record shows a concrete threat; small, promptly intercepted amounts in a tightly controlled intake may not.
Appellate scrutiny: Expect closer review of whether trial courts’ explanations move beyond item‑based generalities to identify an actual threat within the institutional context.

Conclusion

Morris reinforces a central theme in Michigan’s modern OV 19 jurisprudence: context matters, and categorical shortcuts are out. The Supreme Court declines to hold that any drug possession discovered during jail intake automatically “threatens the security of a penal institution” for purposes of a 25‑point OV 19 score. Instead, trial courts must identify and explain the particular facts showing a real, non‑hypothetical threat in the actual circumstances. The decision harmonizes with Dixon and Deweerd, narrows reliance on broader drug‑in‑custody precedents like Dickinson and Carpenter, and clarifies that intake is part of a penal institution while eschewing per se rules. On remand, and in future cases, OV 19’s 25‑point level must be reserved for those intake scenarios where the totality of the facts demonstrates a concrete threat to institutional security; where that showing is absent, zero points—and resentencing if the range shifts—must follow.