Articles Posted in Criminal Procedure

youthful offender
HYTA is avaialble for criminal offenders age 17 but before age 24. The result is that the court does not enter a judgment of conviction, the record is sealed and the case is dismissed upon compliance!

In Michigan, a person is charged as an adult for criminal offenses that occur at age 17 and older. This may be a surprise to most people since other laws treat individuals that are under age 18 as minors. However, Michigan’s Holmes Youthful Trainee Act, commonly known as HYTA gives a youthful offender a chance to keep a criminal offense, including a felonies, off of his or her record.

The essence of HYTA is that it allows for dismissal of eligible criminal offenses committed by youthful offenders. This statute applies only to offenders that are age 17 but before age 24. HYTA is not available for juvenile offenders; those under age 17 or for offenders that are age 24 or older. The dismissal of a criminal offense pursuant to HYTA is tantamount to an expungement. The benefit of getting HYTA means that the offender avoids the stigma and label of a criminal conviction. Subject to some exceptions, HYTA is available for most felonies and misdemeanors. A person applying for a job or filling out an employment application would be able to exclude an offense dismissed pursuant to compliance with HYTA.

image.pngCooperation, Undercover Drug Deals, Snitching: Using the little fish to get the big fish.

We have found that our clients charged with drug crimes experience a state of insecurity and despair when it comes to doing undercover work or cooperating with the police. This is something that is outside of the comfort zone for nearly everyone, especially the family members of our clients faced with this dilemma.

The classic predicament: Should a person engage in undercover drug deals or hire a lawyer for advice and face the criminal charges in the court system?

PT blog picture.jpgThis year, we have published several blogs dedicated to “frequently asked (criminal law) questions”. Whenever possible, we endeavor to avoid legalese by providing articles in layman’s terms. The focus of this blog is pretrial conferences in Macomb County District Courts.

What is a pretrial conference?

A pretrial conference is a meeting that is attended by the attorneys for the parties in a criminal or civil case. The major purposes of a pretrial conference are to facilitate resolution of a case, management of a case for trial or management of a case regarding pertinent issues (as listed below). A pretrial conference is scheduled after either a criminal or civil case is filed with the court, a case number and a Judge are assigned. In Macomb County, criminal pretrial conferences are held soon after the arraignment. For misdemeanors, which occur in Macomb County, the pretrial conference will always be held at the district court (click here for complete listing of links to Macomb County District Courts). Felony pretrial conferences can occur on the date scheduled for a preliminary examination and again after the case is bound over to the circuit court. A person charged with a crime (the defendant) is required to be present on the date scheduled for pretrial conference. However, he or she is usually not allowed in the conference room with the attorneys. On the other hand, police officers and victim’s rights advocates with court business are allowed in the conference room. Likewise, an alleged victim may be present at the pretrial conference as the prosecutor must obtain the victim’s consent for a plea bargain in most criminal cases.

Court-Gavel.jpg What is a plea bargain?

Simply stated, a plea is where a finding of guilt is made through an admission rather than by a judge or jury. Usually this means that in exchange for dismissed charges, reduced charges, a deferral, or for an offer of leniency the defendant explains the crime that they committed to the judge. When a plea is made the defendant gives up his or her right to have a trial and all the rights they would have at trial. This expedites the criminal justice process because it skips the trial portion and the case is fast-tracked for sentencing after the defendant admits to the charged conduct. It is a ‘bargain’ because the defendant must compromise by dispensing with his or her trial rights in exchange for a deal of some sort.

Why do plea bargains exist?

Plea bargains are commonplace in the United States and many would argue are necessary for the smooth operation of our justice system. Some 90% of cases are worked out through plea bargains. In addition to (most the time) benefiting defendants, they benefit the court and prosecution because trials are also costly and arduous for them. With most courts having full dockets, the system would come to a crawl if each case was resolved with a lengthy trial.

What are the most common types of plea bargains?

The most common type of plea arrangements are charge bargains, sentence bargains, sentence recommendations, and what is called a ‘Cobbs plea.’ A charge bargain, which is totally within the discretion of the prosecutor, is a bargain whereby a plea deal is offered in exchange for reduced or dismissed charges . Another type of plea is a sentence agreement. This is where the prosecutor conditions the plea on a term of sentence (for example the prosecutor may recommend a statute that keeps the charge off the defendant’s record). In this type of plea the defendant retains the right to withdraw his plea if the judge does not abide by the prosecutor’s agreement. Along the same vein are sentence recommendations. As we always explain to clients, recommendations are not binding on the judge. However, experience tells us that a judge will more likely than not go along with a prosecutor’s endorsement. Lastly, there are ‘Cobbs pleas’, given their name after the case People v. Cobbs. This is a bargained for sentence with the judge, if the judge exceeds that preliminarily agreed upon sentence the plea may be withdrawn.

What helps for negotiating a favorable plea deal?

Many factors play into negotiating a favorable plea deal. Oftentimes considerations include the defendant’s criminal history, personal background, and the prosecution’s evidence. A clean or limited criminal record always helps at the negotiating table. Similarly, factors such as steady employment, education, and a positive family background tend to be viewed as a encouraging. In terms of the case’s facts, presenting scant evidence of a crime or its elements to the prosecutor can also help in working an advantageous plea.

Doesn’t a plea mean the crime will go on my record?

We get this question a lot – the answer is not necessarily. Frequently, the entire purpose of taking a plea deal is because it is conditioned on some type of deferral (or a deal whereby the charge will be removed from the client’s record). These deferrals are discussed at length on our blog and website. For purposes of this blog it is sufficient to know the common deferrals are available for youthful offenders, domestic violence cases, drug cases, and MIPs . There is also a general deferral under the delayed sentence statute.
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police-raid.jpg

In this concluding portion of our series, we will discuss illegal searches as they relate to an individual’s home. The following will serve as a paradigm for exploring police searches of the home;

Were the police allowed to enter the home?
Were the police allowed to search the home?
What was the scope of the permissible search within the hom
e?

The 4th Amendment provides the most safeguards to people in their homes. This stems from colonial America and is one of the foundational principles of the Bill of Rights. The 4th Amendment is premised on the idea that the home is one’s castle and the government cannot enter it unless there is good reason to do so. Searches of the home can be separated into two categories, searches with and without warrants. A search absent a warrant is presumptively unreasonable. Without a warrant, police can only search somebody’s home if there is exception to the warrant rule. However, this is one the situations in law where it is said the exception swallows the rule.

Searches WITH Warrants

This post will discuss two types of warrants, search warrants and arrest warrants. Arrest warrants will be discussed more as an exception to the warrant rule. A search warrant must be based on probable cause. Probable cause is presented via affidavit which must be signed by a judge or magistrate. Warrants can be defective on the grounds they are ‘stale‘, or based on old information. They can further be defective on the grounds of scope and specificity. There needs to be some guidance as to what can be seized in order to limit officers’ discretion. However, it can sometimes be difficult to challenge warrants because of the “good faith exception”, often preventing the suppression of evidence where an improper warrant was relied on in good faith.

Searches WITHOUT Warrants
The major recognized exceptions to the warrant requirements are;

1) Consent (standing),
2) Exigent circumstances,
3) Emergency aid,
4) Search incident to arrest,
5) And plain view.

The police may enter a home where there is consent that is freely given. However, from a legal standpoint one must have standing (or the authority) to give consent. Somebody must be more than just a temporary guest in order to give the police permission to search somebody’s home (an overnight guest, however, is sufficient). Where there is an immediate and pressing interest in preserving evidence, protecting police/the public, or preventing a suspect from escaping police can enter a home under the ‘exigent circumstances‘ doctrine. Where there is a reasonable belief that somebody is in need of medical attention police may enter a dwelling. However, police must have more than ‘speculation that someone inside side may have been injured’ in order to justify a warrantless intrusion under this doctrine. As stated above, where an arrest warrant has issued police may enter a home to effectuate that arrest without a separate warrant. This does not allow the police to enter a third party’s home and further they will be limited to only conducting a protective sweep within the home. Where a police officer is positioned somewhere he/she is legally allowed to be and can see evidence of a crime that officer can seize the item. The example that is often given is where police sees evidence of a crime through a window, absent an exception, they must still obtain a warrant to enter the home.
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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.
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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.
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