October 2012 Archives

Illegal Searches Part 2: Automobile Searches

October 30, 2012,

hot pursuit.jpgIn the second part of our 3 part series on searches, this blog will discuss the rules governing automobile searches. The following needs to be considered when a motorist is pulled over and subsequently searched;

Was the stop a traffic stop or a stop based on suspicion of criminal activity?
Was any search justified?
Was the scope of the search justified?

As alluded to in our prior post, being in an automobile affords individuals much less 4th Amendment protection than being in their home. Police can search a car without a warrant under the 'automobile exception'. Such searches must be supported by probable cause. According to case law, the general population doesn't have a reasonable expectation of privacy within their automobile because it is operated upon public roadways and is highly regulated by the government. Thus, automobiles upon public roadways are subject to a much lower expectation of privacy than a private home - other drivers, and police officers, can see directly into the majority of traveling cars. It should also be noted warrantless searches may be conducted pursuant to a valid inventory search after the seizure of an automobile.

Police can stop a motorist either for violation of the motor vehicle code or based on the hunch of criminal activity. Where the officer actually observes a traffic violation they are allowed to make a stop. However, it is often a traffic stop that allows the police to make an arrest for a more serious crime. The police can run a background check during a traffic stop, if that check shows outstanding warrants the police may then arrest that individual and search their vehicle. Moreover, the police do not need a warrant in order to run a license check of a vehicle.

Police may expand the scope from a brief detention to issue a traffic ticket where there is a fair probability of contraband/evidence in the vehicle based on the totality of the circumstances. If a law enforcement official see's, say for example a bloodied weapon, in plain sight during a traffic stop they may immediately seize that weapon. Another scenario, one that regularly plays out in this office, is where an officer smells alcohol or marijuana during a traffic stop. The smell of marijuana justifies a search of the motor vehicle. Similarly the odor of intoxicants allows the police to conduct roadside sobriety tests.

Where there is no traffic violation, law enforcement may make an investigative stop where they believe criminal activity is taking place. Where there is probable cause that a crime is being committed police may stop an automobile without a warrant (for example where a car is described as leaving the scene of a recently committed crime). Probable cause can be premised on as little as an anonymous tip. Depending what the probable cause is for (meaning a stolen vehicle versus a bag of drugs) will dictate the initial scope of the permissible search. Practically speaking, the police will likely find a way to search the entire car through one of the warrant exceptions. Further, probable cause will typically give pretty wide latitude in terms of what portions of the car can be searched absent a warrant. Police can, for example, open a container if they have reason to believe there is evidence of a crime in that container. However, the search needs to be somewhat logical. That's to say that police likely do not have the authority to search a purse if they stop an automobile under suspicion that it's harboring illegal immigrants.

Beneath is some case law regarding automobile searches.

- The police may not search an automobile if the stop was solely for the purpose of seeing the motorist's license.
- The police may search a car incident to a custodial arrest.
- The police may not search a car where a ticket is issued for a traffic offense provided that's the reason the car was stopped.
- Police may search a car made at the end of a hot pursuit of a crime scene.
- Police may search a car believed to be stolen.
- The police may allow a dog to sniff an automobile during a legitimate traffic stop.

Continue reading "Illegal Searches Part 2: Automobile Searches" »

Michigan Criminal Child Neglect & Child Abuse

October 29, 2012,

child neglect pic.gif

This blog will explain the Michigan Child Neglect and Abuse laws and conclude with some of our legal strategies which are utilized to defend a client charged with child abuse or neglect. Our criminal defense attorneys approach child abuse and neglect cases with the utmost diligence and care. We invariably will recommend that a person who is investigated for child abuse or neglect refrain from discussing the case with anyone until a criminal defense lawyer is retained.

The Michigan Department of Human Services (DHS) is the government entity that is responsible for investigating suspecting reports regarding child abuse and neglect. DHS then makes a recommendation to the Family Court as to whether they think you are guilty of child neglect and/or for possible termination of parental rights. In addition, these reports are turned in to the police for possible criminal charges of child abuse or neglect. Names of individuals are placed on the statewide abuse and neglect Central Registry if there is a preponderance of evidence that the individual has abused or neglected their child and the future risk to the child is high or intensive.

Child Neglect

The Michigan statutory definition of child neglect is: harm or threatened harm to a child's health or welfare by a parent, legal guardian, or any other person responsible for the child's health or welfare that occurs through either: (1) negligent treatment, including the failure to provide adequate food, clothing, shelter, or medical care, or (2) placing a child at an unreasonable risk to the child's health or welfare by failure of the parent, legal guardian, or other person responsible for the child's health or welfare to intervene to eliminate that risk when that person is able to do so and has, or should have, knowledge of the risk.

Child neglect is when a child is harmed or threatened to be harmed by the failure to provide for the child or the failure to intervene when the child is already being harmed. A child neglect case does not require intentional conduct to harm the child but only a negligent act or failure to act.

Child Abuse

The Michigan statutory definition of Child Abuse is: harm or threatened harm to a child's health or welfare that occurs from non-accidental physical or mental injury, sexual abuse, sexual exploitation, or maltreatment by a parent, legal guardian, or any other person responsible for the child's health or welfare.

Legal Strategies and Defenses

In many cases of alleged child abuse or neglect, a case may be resolved after the DHS has conducted an investigation. If the police get involved, they will invariably want to interview the child and parents for possible criminal charges. There are numerous concerns which our firm will explore in a case involving child abuse or neglect, such as:

-The child's motives to lie (retaliation, attention getting)
-Psychological issues of the child
-Whether the case involves "self defense"
-Possible manipulation of the child by a former spouse
-Was the child restrained to prevent the child from self harm or harm to others
-Whether the parent's conduct is excused because of "reasonable discipline"

Anyone facing a child abuse or child neglect case will lose the ability to think objectively. Most will react with anger and frustration which will often give the police and/or DHS the wrong impression. DHS initially has to deal with the allegations as though they are true for the protection of the child. This may mean removal of a child from the home during the pendency of an investigation. Every thing you say or do can have a lasting impact on a child neglect or child abuse case. For this reason, it is crucial to obtain legal representation at the earliest opportunity to set the record straight and avoid common mistakes or incriminating yourself.

Michigan's Felony Marijuana Laws: Delivery of Marijuana, Growing Marijuana and Possession with Intent to Deliver Marijuana; Fines can Be Imposed Up to Ten Million ($10,000,000.00) Dollars!

October 24, 2012,

marijuana growing.jpg

Michigan has become a state that has decriminalized medical marijuana for qualified patients and caregivers. However, our criminal defense lawyers have seen an increase of marijuana busts which involve medical marijuana caregivers, as well as patients, who are engaged in one of the following:

-Exceeds the number of marijuana plants, or quantity of marijuana, that is legally allowed for medical marijuana caregivers and/or patients

-Sells or transfers marijuana to a person (or undercover police officer) other than a qualified patient

In both of the above scenarios, the police will conduct a search and seizure of drugs, money, firearms and other property that can seized pursuant to the forfeiture laws. If a motor vehicle is used to transport the marijuana, it may also be seized. As always, "cash is king" and the police love confiscating cash under the theory that the cash was obtained from illegal drug transactions or that the controlled under cover buy money was mixed in with other cash.

Usually, the police will gain information regarding an illegal marijuana operation from a confidential informant. The informant is usually someone who has been caught with drugs or marijuana and is promised leniency for his or her cooperation with authorities.

Felony Marijuana Delivery, Manufacturing and Possession with Intent to Deliver Penalties

The penalties associated with marijuana crimes (delivery, growing, possession with intent to deliver will depend upon the quantity of marijuana involved. All of these offenses are felonies which can carry a term in prison and massive fines:

-1-4 kilograms and less than 20 plants, not more than 4 years and $20,000 fine

-5-44 kilograms or between 20-199 plants, not more than 7 years and/or $500,000 fine

-45 kilograms or more, or 200 plants or more, not more than 15 years and/or $10,000,000 fine

When the crime is manufacturing (growing), any size plant counts towards determining the appropriate penalty (even a sprout).

Click here for other drug crime penalties

Contact an attorney if you are arrested, charged or if your home is searched and property seized

Our attorneys know how to navigate the felony marijuana laws as well as the Michigan forfeiture laws. In every case, our goals are to avoid a felony conviction, avoid prison and avoid harsh fines which could result in financial ruin of an entire family. Some of our recent cases include the following results:

-Agreement by police to waive forfeiture of a residence where marijuana was manufactured.
-Settlement of seized assets within 24 hours after raid or seizure.
-Reduction of multiple felony charges (delivery of marijuana) to misdemeanors.
-Dismissal of felony marijuana cases pursuant to HYTA for youthful offenders.
-Avoidance of additional charges for possession of firearm during commission of felony.
-Avoidance of cooperation with the police.
-Fines and costs well below the maximum!
-No Jail!

7411: Dismissals available for first offenders charged with "use" or "possession"

The misdemeanor offenses for "use" or "possession"of marijuana are eligible for special disposition pursuant to MCL 333.7411 ("7411") which allows for dismissal of the crime upon compliance with probation. However, a person is entitled to only one (1) disposition pursuant to 7411 in his or her lifetime.

Click here for medical marijuana application form

Continue reading "Michigan's Felony Marijuana Laws: Delivery of Marijuana, Growing Marijuana and Possession with Intent to Deliver Marijuana; Fines can Be Imposed Up to Ten Million ($10,000,000.00) Dollars!" »

Illegal Searches Part 1 of 3: General Rules and Searches of a Person

October 11, 2012,

Abdo Law Police Patdown.jpg

Oftentimes clients ask the following questions;

When the police searched me, was their search valid?
Were the police allowed to search me?
Did the police have the authority to search me?

Answer: It depends, this three part blog series will explore what types of searches are and are not valid.

The 4th Amendment of the U.S. Constitution states that no one should be subjected to an unreasonable search. Michigan's standard for searches is not higher than that of the Federal Government.

The general rule is that a search without a valid warrant is unreasonable. Where there is no warrant it must be demonstrated that there was both probable cause and a valid exception.

Beneath are the recognized scenarios where law enforcement may conduct a warrantless search;

1) When incident to a lawful arrest,
2) Under the "plain view doctrine",
3) Based on voluntary consent,
4) Pursuant to a custodial inventory search,
5) Pursuant to statute,
6) When presented with exigent circumstances,
7) Automobile searches,
8) And stop and frisk searches.

The Constitution affords the most protection to homes. Much less protection is extended to motorists and individuals. This post is devoted to what is required to search an individual without a warrant.

Terry Stops

Pursuant to the Terry v Ohio U.S. Supreme Court decision, a police officer has the authority to stop a suspect when he/she has reasonable suspicion that criminal activity is occurring. Basically, the officer must be able to describe the situation and explain his actions based upon his experience as a police officer. This pertains only to whether or not an officer can stop an individual who is walking down the street.

Whether or not the officer can search the individual is dependent upon the circumstances of the encounter. Although the person has been stopped based upon the officer's reasonable suspicion, the officer is limited in how he/she can search the individual's person. When the officer has reasonable suspicion that the person is armed and presently dangerous or is engaging in criminal conduct, they are entitled to search the individual. The frisk, as it's known, is limited to a search for weapons by patting down only the outer clothing of the person. During this search if an item is immediately recognized as contraband it may be seized pursuant to the "plain feel" exception. However, an officer cannot, for example, manipulate an objected suspected to be contraband through the clothes or remove that object in order to determine that it is indeed contraband.

Both the search and the stop must be reasonable. This is determined through an objective test, which means that if the behavior meets a certain threshold, it's reasonable. If not, the police behavior is unreasonable.

Courts have held the following -

1) It is not a violation of the Fourth Amendment for a cop to stop and question an individual on the street.
2) While a person's mere presence in a high crime area may not be enough to warrant a frisk, running from such an area is.
3) An officer's personal observation of criminal activity is not needed to form reasonable suspicion, it can be based on third party information.
4) Police officers cannot manipulate someone's carry-on luggage in order to determine its contents, whereas a canine sniff (properly limited in scope) is not a "search" as defined by law.
5) Police may question persons on public transportation.


Continue reading "Illegal Searches Part 1 of 3: General Rules and Searches of a Person" »