Michigan Criminal Lawyer Blog

Articles Posted in Drug Offenses

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Possession or sale of drug paraphernalia is a criminal offense in Michigan. A person may be charged with the offense “possession of drug paraphernalia” even though there are no drugs or marijuana involved. Most items the law considers drug paraphernalia are harmless and not otherwise illegal. However, when the items are associated with past or present illegal drug use, criminal charges may be pursued.

Drug paraphernalia, or narcotics paraphernalia, is the umbrella label given to describe the equipment utilized for the purpose of using or dealing in controlled substances and marijuana. A marijuana pipe, a triple beam scale, needles and bongs are all considered drug paraphernalia.

In Michigan, the definition of drug paraphernalia is found at MCL 333.7451:

“Drug paraphernalia” means any equipment, product, material, or combination of equipment, products, or materials, which is specifically designed for use in planting; propagating; cultivating; growing; harvesting; manufacturing; compounding; converting; producing; processing; preparing; testing; analyzing; packaging; repackaging; storing; containing; concealing; injecting, ingesting, inhaling, or otherwise introducing into the human body a controlled substance…

Defending Drug Paraphernalia Cases

In Michigan, possession of drug paraphernalia is a crime which is classified as a misdemeanor. In Michigan, misdemeanor cases are handled in the district courts; such as the 41-A District Court in Sterling Heights or the 41-B District Court in Clinton Township. A drug case involving possession of marijuana will have a second charge added whenever the police also find paraphernalia. The problem that we find is that many individuals do not take these charges seriously. Actually, many wind up just pleading guilty without knowing their options. Once a guilty plea is accepted by the court, a permanent criminal record is created, which contains the stigma of a “drug crime.” Later, the individual realizes that this offense shows up on a public criminal record and must be disclosed as a conviction on applications for employment, education and state licenses.

Our Macomb County lawyers can assert various defenses to drug crimes as well as drug paraphernalia cases including:

  • Lack of identification with items claimed to be drug paraphernalia

In addition, our attorneys can advocate for a deal to have a drug paraphernalia charge dismissed after a period of probation pursuant to various provisions of Michigan laws. These provisions of law allow the court to take a case under advisement and grant a dismissal to an offender who proves himself or herself to the court. Youthful offenders, age 17 but under age 21, are eligible to have the matter dismissed without entering a judgment of conviction.


Drug Paraphernalia Charges May Support Other Charges Such as Possession of Controlled Substance When Residue is Present

In the war on drugs, our lawmakers have made it a crime to possess peripheral items, namely those items that are associated with used for the ingestion, sale or manufacture of drugs.

Possession of Controlled Substance: The police may seek additional controlled substance criminal charges for possession of a controlled substance whenever drug residue can be found within the paraphernalia or in the person’s possession. Possession charges (cocaine, marijuana, heroin) can be supported even though miniscule particles of drugs are derived from the paraphernalia. For example, this occurs when the police can scrap marijuana or cocaine residue from a pipe or bowl. Possession of cocaine and heroin are charged as a felony, even when the quantity obtained is hardly measurable.

Maintaining a Drug House or Vehicle: This is just another possible charge when the police can obtain paraphernalia and other drugs from an individual. Click here for a link to our website page for information regarding maintaining a drug house or vehicle.

Cooperation or Snitching: In addition, the police may attempt to persuade someone caught with drug paraphernalia to engage in undercover drug deals.

We recommend that anyone facing criminal drug charges hire an experienced criminal defense attorney to discuss all possible options, defenses and alternative provisions of law which can lead to dismissal.

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Cooperation, 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?
Whether someone charged with a drug crime should cooperate with the police to get a favorable deal is a delicate and controversial topic. It is necessary to obtain legal advice should anyone be charged with a drug crime and asked to cooperate. Consultation with a criminal defense attorney is crucial – time is of the essence.

We have successfully defended clients charged with drug crimes since our firm’s inception without taking the precarious route of “cooperation” with the police. This is especially true for clients who do not have a prior criminal record, and those that are caught with a small quantity of drugs or marijuana.

Some Facts about Cooperation with the Police

  • There is no guarantee that you will avoid criminal charges when you cooperate with the police!
  • The police will not be able to guarantee your safety if you engage in undercover drug deals!
  • Cooperation with the police ends when the police say it ends!
  • Cooperation may mean engaging in drug deals that not only involve much higher quantities than you had in your possession, but may also include buying other types of drugs!

What is the Purpose of Cooperation?

The need for inside information is a dynamic law enforcement tool in the war on drugs. A minor drug offender who is used by the police to get the ‘bigger fish’ is justified on the grounds that drugs are a dirty business. This issue necessitates the need for undercover informants. The end result is another drug bust which nets the police additional sources to gain information. Should the drug bust bear fruit, others will be implicated, assets forfeited and prosecutions will occur.

Retain a Lawyer to Protect Your Rights and Discuss Your Options

When someone is arrested for a drug crime, the arresting agency will attempt to get a suspect to cooperate, or snitch. This is usually followed an offer of possible preferential treatment in the criminal justice system. Unfortunately, I hear from my clients far too often that they are told by the police that they do not need a lawyer in this scenario. This is absurd and dangerous. Whenever someone forgoes his or her 6th Amendment Constitutional right to a lawyer, he or she can wind up doing risky undercover drug deals without ever knowing all of the possible options. In addition, we found that police dictate the level of cooperation that is required. In other words, cooperation is not over until the police say it is over. This may mean that someone who is not faced with serious drug charges is coerced, or persuaded, to participate in risky undercover drug transactions without ever getting sound legal advice.

Here is what the police do not tell you:

  • Pursuant to the 6th Amendment of the US Constitutional, you have a right to an attorney.
  • Pursuant to the 5th Amendment of the US Constitution, you have a right to remain silent.
  • Your attorney can petition for deals to have your case dismissed pursuant to MCL 333.7411 or HYTA (Youthful Trainee Act), even if you do not cooperate with the police.
  • You may have defenses to the drug charges. For example, illegal searches and lack of actual possession.
  • You may not be facing jail.

We have made references to an excellent You Tube video, “Don’t Talk to the Police”, in other internet posts. We found the video to be extremely informative, as well as objective.

Cooperation in the Federal Court System

Federal criminal prosecutions are handled in a much more formal manner. In the Federal court system, the issue of cooperation is much different than what we see at the state court level. In the Federal system, special formalities and agreements exist. They involve both the District Attorney and at least one law enforcement agency; usually the Federal Bureau of Investigation (FBI) or the Drug Enforcement Agency (DEA). In the Federal arena, cooperation is prevalent and can be a factor to avoid a mandatory minimum sentence. The following language is contained within a Plea and Cooperation Agreement:

“If the defendant commits any crimes or if any of the defendant’s statements or testimony prove to be knowingly false, misleading, or materially incomplete, or if the defendant otherwise violates this Plea and Cooperation Agreement in any way, the government will no longer be bound by its representations to the defendant concerning the limits on criminal prosecution and sentencing as set forth herein.”

Don’t do it alone. Our attorneys can help you determine the best course of action when it comes to dealing with your drug charges in the court system or the route of cooperating with the government. At times, cooperation with law enforcement may be a viable option. In the Federal system, it is routinely utilized in the plea bargaining and sentencing process. However, cooperation needs to be explored for each case on an individual basis by an experienced criminal defense attorney. Keep in mind that it is the client makes the ultimate decision whether to engage in cooperation or undercover operations with law enforcement officers. An attorney will look at the case from every angle, including the prospect of cooperation and whether drug charges can be fought and won. In addition, various Michigan statutes enable qualified offenders to obtain plea agreements for dismissals.

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A recent article in the Detroit Free Press, “Troubling heroin addiction trend grips southeast Michigan“, verifies what our law firm sees on a regular basis. The article points out that the prescription drug abuse is a precursor to heroin use. Heroin becomes the drug of choice when a user can no longer supply his or her drug habit with analogue drugs such as Vicodin and OxyContin. The article states, “Our 18- to 25-year population has exploded” in recent years…. The prescription medication problem is pushing this heroin problem. Anybody who tells you anything different doesn’t know what they’re talking about. I could poll every kid who comes in our clinic, and it’s a broken record. It’s the Vicodin and OxyContin, and then it goes to the heroin.”

In my opinion, this article is long overdue and right on point. On a daily basis, our criminal defense lawyers deal with new and existing clients who are charged with drug crimes in Macomb County ranging from possession of marijuana, possession of analogues or possession of heroin. We are also seeing a greater number of cases which involve the drugs ecstasy (MDMA) and methamphetamine. Drug offenses are consistently high on the list of prevalent misdemeanor and felony cases which we handle. From a legal point of view, the drug user who is charged with a crime must address a drug problem while going through the formal court process.

Sterling Heights is also facing a problem with heroin use, as evidenced by a recent article found on WDIV’s website. “Police say many children are switching from prescription pill abuse to heroin because it’s cheaper.”

Drug Crime Penalties Link

The defense of drug crimes such as possession of heroin are unique from a criminal defense attorney’s point of view. We first start out by determining whether there is a defense to the criminal charges. The most common defenses which are advanced on behalf of individuals charged with drug crimes are “lack of possession” or “illegal search and seizure“. Secondly, we need to determine the extent of a client’s substance abuse problem and make recommendations accordingly.

Legal & Personal Issues for Drug Users Charged with Drug Crimes

Our legal consultations with clients that are charged with drug crimes are akin to an “intervention” with the offender and his or her parents present. Since drug charges such as possession of analogues or heroin are felonies, we invariably are discussing the possibility of a criminal felony record and incarceration. The “intervention” aspect of the consultation covers the reality of drug addiction and urgency to gain control of the problem before it is too late. According to the recent article posted in the Detroit Free Press, “The fatal overdoes in recent years often involve young men and women — some just teenagers — who are working and going to school “and who get caught up in it.”

I like to think that the legal process for someone charged with a drug crime can be the “turning point”. When we can reach someone at this juncture, the chances of managing a drug problem are huge. However, the drug user cannot do it alone. I consider family members to be the most important component in the overall plan to remain abstinent. A parent may consider keeping very close tabs on a child with a drug problem. This may mean taking away the car keys and privileges. In extreme cases, we recommend that the drug user enter an in-patient program for detoxification and monitoring depending upon the circumstances. Other components of rehabilitation include Narcotics Anonymous meetings and intensive out-patient programs. Once in the court system, we may petition for “Drug Court” or other recognized programs that are favored by a particular Judge. A successful abstinence plan also necessitates lifestyle changes such as engaging in healthy activities, diet and spirituality.

Dismissal of Criminal Charges Upon Compliance & Abstinence

Our vast experience handling drug crimes and proactive stance towards these cases can lead to an excellent outcome in the court system and a viable recovery plan. We often utilize a special statute which is found in the Controlled Substance Act (MCL 333.7411) to obtain a dismissal of drug charges which involve use or possession. However, dismissals are not available if the offender is convicted of delivery or manufacturing. Earning a dismissal pursuant to MCL 333.7411 means staying drug free, random drug testing and not getting any other arrests. We have found that courts will impose greater restrictions and requirements upon individuals that cannot manage themselves. For this reason, our strategy when representing drug offenders is to outline a long term drug-free plan.

Relapse Prevention

A reality of drug addiction is the aspect of relapse. Understanding that relapse is a process and having the tools to avoid relapse are essential. A relapse is often discovered when someone who is already in the court system fails a drug test or obtains another drug related criminal charge. This only compounds the existing legal problems and may mean incarceration or other penalties. Approaching the court in these situations requires the offender to implement Plan B. In other words, the offender may need to enter an in-patient program or take additional substance abuse recovery measures. In some cases, we can ask to delay the underlying court cases while the offender is an in-patient. Although not guaranteed, most courts will work with us to schedule court dates after the offender completes a residential treatment program. It is our function to provide the court with the details of our client’s relapse prevention plan in these situations. Since the courts know that a relapse is an inevitable aspect of recovery, we can often avoid the harsh criminal sanctions on behalf of a client that experiences a relapse while in the court system.

Drug cases can result in a felony record and prison. Fortunately, the court system has some safe havens which are designed to give a drug user a second chance. The ABDO LAW FIRM can make recommendations and work closely with family members to achieve the ultimate goal of getting a drug problem under control. In addition, proper management of a criminal drug charge may mean avoidance of jail, avoidance of a felony conviction and possible dismissal for eligible clients.

For other information regarding drug crimes, view our post on cooperating with police when charged with a drug crime.

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At Abdo Law, we deal with many clients that maintain a Concealed Pistol License, or CPL, and the question always arises: will I lose my CPL if I’m charged or convicted of a crime? The answer is maybe, but Abdo Law’s dedicated attorneys will do everything in their power to guide clients through the process.

The State of Michigan sets guidelines for those wishing to obtain a CPL:

• Applicant must be at least 21 years of age;

• Be a citizen of the United States or an immigrant lawfully admitted into the United States (green card holders)

• Be a resident of the State of Michigan for at least 6 months prior to application
• Successfully complete a pistol safety training course
• The applicant may not be subject to involuntary hospitalization, an order finding legal incapacitation or a finding of not guilty by reason of insanity
• Not be subject to a conditional bond release that prohibits the purchase/use of firearms
• Not be subject of a personal protection order (PPO)

• Applicant has not been prohibited from having firearms in his/her possession, pursuant to MCL 750.224f

• Have no felony charge pending in Michigan, or any other jurisdiction
• Applicant was not dishonorably discharged from the United States Armed Forces
In addition to the above requirements, applicants for a CPL must prove to the State of Michigan that they have not been convicted of certain misdemeanors. Some convictions bar the applicant for 8 years and others bar the applicant for 3 years. Lists with examples of such crimes have been provided below.

A question that occasionally presents itself is whether a matter that was disposed of under HYTA, 7411, 769.4a, or 771.1 will affect a CPL license. It is my understanding is that a CPL typically will not be granted to individuals on probation, even with a deferral. These dispositions still show up on the back end of records systems for law enforcement. Moreover, my understanding is that while it is possible to get a CPL after a case disposed of with HYTA or 7411, it is less likely for a case concluded with 769.4a or 771.1. Before being granted the license, in Macomb County for example, you need to first sit before a board. Somebody who just got off probation, even with a 769.4a, may have trouble getting a CPL even though the case has been dismissed. Being that the charge tends to indicate violent behavior, it is my opinion such an individual will have more difficulty getting a CPL than someone with a 7411 deferral. Please be advised, this is just my opinion.

Nonetheless, if you believe your current or potential gun rights could be jeopardized you should engage counsel immediately. Deferrals, reductions, and dismissals could be helpful in reducing the time that you are ineligible for a CPL. On the following page we have provided crimes that make applicants ineligible for a CPL.
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This 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.

The direction of a criminal case is often determined after a pretrial conference. Pretrial conferences are a vital tool, which a skilled criminal defense lawyer will utilize for several reasons:

  • Promote dismissal of the charge(s) under certain circumstances
  • Negotiate a favorable plea bargain
  • Address bond, bond conditions and/or release from jail
  • Adjourn the pretrial conference to seek a deviation when strict policy obstructs a plea bargain
  • Request modification of no-contact order (domestic violence cases)
  • Negotiate restitution when financial losses are claimed
  • Meet with the Judge when judicial support is needed to discuss various matters, such as sentence bargains, creative plea bargains or to simplify issues of the case when set for trial
  • Size up the prosecution’s case, witnesses and evidence
  • Request copies of discovery (police reports, videos, chemical test results)
  • Schedule one or more motion dates to attack the evidence, or to weaken the case
  • Set future pretrial conference date(s) when delay can tend to improve the defense position
  • Schedule the case for a bench or jury trial

Factoid: A person who is accused of a crime is not considered a “defendant” until that person is formally charged with a crime. Our criminal defense lawyers never refer to our clients as “defendants” when speaking to the court or prosecutor because of negative connotations. We prefer to refer to our clients by their given name or “the accused”.

What is the attorney’s role at a pretrial conference?

The best way for me to summarize an attorney’s role at a pretrial conference is by mentioning a few passages from the Michigan Rules of Professional Conduct.

A lawyer is a representative of clients, an officer of the legal system and a public citizen having special responsibility for the quality of justice.

As advocate, a lawyer zealously asserts the client’s position under the rules of the adversary system.

As negotiator, a lawyer seeks a result advantageous to the client but consistent with requirements of honest dealing with others.

What is the defendant’s role at a pretrial conference?

Macomb County (as well as Oakland, Wayne and St.Clair), require the attendance of the defendant at the pretrial conference. If the defendant “fails to appear”, an arrest warrant may be issued. Prior to the pretrial conference, our criminal defense attorneys discuss goals and/or strategies with our clients. Even though the defendant is not present in the conference room, he or she is well informed of our intentions. We advise our clients to be punctual, dress appropriately and to refrain from discussing their case with anyone at the courthouse. We assume that our client’s conduct is “being monitored”. Therefore, we discourage any interaction with the victim or any conduct which draws unfavorable attention. Any progress towards working out a deal can be blown if a client offends certain key decision makers at the pretrial conference or at any other time while a criminal case is pending!

Is there an appearance in the courtroom after the pretrial conference?

After the pretrial conference, the defendant and his or her attorney will appear in open court and inform the Judge of the results. The Judge has the final say regarding the outcome of a pretrial conference. For example, certain plea bargains may be against the Judge’s own policy and may require some persuasion and legal authority. In addition, the Judge may show frustration when the parties are attempting to adjourn (delay) cases. Since adjournments tend to clog court dockets, the Judge will require that “good cause” be shown.

Our experience is that a pretrial conference is an invaluable opportunity to advocate on behalf of our clients. Advocacy includes elements of assertiveness and diplomacy. We often can achieve a disposition after the pretrial conference. This may result in a plea bargain, which may have the effect of dismissing the criminal charges in exchange for completion of probation. It is our job to protect our client’s rights and seek the best possible outcome, which may mean saving a client from being exposed to egregious facts and the expenses of an unnecessary trial. The defendant remains the ultimate decision-maker when presented with options after the conclusion of a pretrial conference.

Some other important things to know about pretrial conferences:

-Denial of a pretrial conference may constitute a denial of “due process” rights. US vs. Ataya, 864 F2d 1324 (1988)
-No admissions made by the defendant’s lawyer in the setting of a pretrial conference are admissible against the defendant during trial.
-Pretrial Conferences for federal criminal cases are governed by Federal Rule of Criminal Procedure 17.1

The addresses and phone numbers for all Macomb County district courts can be found at the following links:


Warren 37th District Court

Eastpointe 38th District Court

Roseville and Fraser 39th District Court

St. Clair Shores 40th District Court

Sterling Heights 41-A District Court

Shelby, Utica and Macomb Township 41-A District Court

Clinton Township, Mt. Clemens, Harrison Township 41-B District Court

Romeo, Washington Township, Armada, Bruce Township, Ray Township, Richmond, Memphis 42-1 District Court

New Baltimore, Chesterfield Township, Lenox Township, New Haven 42-2 District Court

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The Michigan Bar Association releases crime data for the state from time to time. While researching cases, we came across an informative article written by the Michigan Bar Association regarding the most frequently charged felonies in the State of Michigan. This article can be viewed here: Top 50 Felonies Most Frequently Charged in Michigan. Based upon our experience, I would agree: this list is an accurate representation of the types of cases that our Macomb County criminal defense firm handles on a frequent basis.

Listed below is a selection of the top felonies charged in Michigan:
Possession of a Controlled Substance (heroin, cocaine, analogues)
• Possession of Marijuana (double penalty for second offense)
• Possession of methamphetamine (MDMA)
Possession with intent to deliver less than 50 grams (cocaine, narcotic)
• Possession of an Analogue controlled substance (pills)
• Possession with intent to deliver marijuana • Manufacturer or delivery of less than 5 kilograms of marijuana • Drunk driving – 3rd offense
• Assault with Dangerous/Deadly Weapon (“Felonious Assault”)
Assault with Intent to do Great Bodily Harm
• Resist/Obstruct a Police Officer & fleeing and eluding • Criminal Sexual Conduct – 1st, 2nd, 3rd and 4th Degree • Keeping or Maintaining Drug House • Home Invasion
• Retail Fraud 1st Degree (Retail Fraud 2nd and 3rd Degree are misdemeanors)
• Larceny in a Building, Larceny from a Vehicle
Sometimes, the amount of loss will determine whether an offense is classified as a felony. Offenses, such as embezzlement and malicious destruction of property, are also on the list of top felonies when the value is $1,000.00 or greater. If the value of stolen property was less than $1,000.00, the offense would qualify as a misdemeanor.

Pursuant to the Michigan Sentencing Guidelines, felonies are further broken down into categories that determine the accompanying sentence. Punishment for each class is listed below:
• Class A – Life imprisonment • Class B – Up to 20 years in prison • Class C – Up to 15 years in prison • Class D – Up to 10 years in prison • Class E – Up to 5 years in prison • Class F – Up to 4 years in prison • Class G – Up to 2 years in prison • Class H – Jail or other intermediate sanctions, such as fines
Note: A future blog will be dedicated to the Michigan Sentencing Guidelines.

Below, you will find connections to some of our blogs that are pertinent to felony cases:

All Felony-related Posts

Drug Possession

Felony Assault – Assault with a Deadly Weapon

Fleeing, Eluding and Obstructing the Police

First Degree Retail Fraud and Larceny

Third Drunk Driving Conviction

Child Abuse and Neglect

Felony Marijuana Possession
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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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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
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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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Every drug crime requires the element of “possession”. In fact, drug crimes rank high on the list of frequently occurring felony cases in Michigan. Drug crimes include: “possession” or “possession with intent to deliver” marijuana, heroin, cocaine, MDMA or analogues.

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Whenever someone is charged with any drug crime, our criminal defense attorneys will question whether the accused legally possessed the alleged drugs.

Michigan Courts Define Possession In Criminal Cases

In Michigan, a person must knowingly and intentionally possess an illegal drug to be charged with possession of a controlled substance under Michigan’s drug possession statute. But what does that mean?

The courts in Michigan consolidate possession into two categories
1. Actual possession: an individual has drugs on their person (pocket or shoe)
2. Constructive possession: individual has the right of control and dominion over the controlled substance

 

 

Actual possession is simple. If the drugs are in a person’s pocket, that person possesses the drugs. But what if the drugs are found in a home where multiple people are present? What about in a car with more than one occupant? What if the person was unaware the drugs were in the car? Determining whether or not the individual had a right of control or dominion over the drugs, or over the premises (car, apartment, house) in which the drugs were found, is critical in these situations. However, an individual’s presence in the same house or automobile as the drugs is insufficient to establish possession; a connection between the drugs and the individual must be found as well. When a person is merely present at a place where drugs are found or is an innocent bystander, our firm will argue that there is insufficient evidence to establish the element of possession.

Michigan Courts broadly interpret possession:

People v Nunez (2000): In this case, police entered a home and discovered, along with several occupants, a large stash of cocaine. Although Mr. Nunez didn’t have the cocaine on his person, he was charged and convicted of possession of cocaine. The police arrived at their conclusion by observing the apartment and its contents. Mr. Nunez had a key for the apartment and stayed at the apartment most of the time. His name was also found on bills within the apartment. The connection between Mr. Nunez and the drugs was straightforward in this case.

People v Meshell (2005): In this case, police observed a man emerging from a garage in which they later discovered methamphetamine. Upon entering the area, police noticed a strong chemical odor coming from the garage. Mr. Meshell was the only person in the area of the garage and when police ran his record, they discovered past issues with methamphetamine. Because Mr. Meshell had past issues with meth, it was obvious that he knew the smell. He was also the only one in the area at the time police observed him exiting the garage.

People v McKinney (2003): In this case, police entered a home and discovered a large amount of cocaine. Police found crack in drawers containing women’s clothing, and linked the drugs to Ms. McKinney because she was frequently staying at the apartment. Drugs were also found within the pockets of women’s clothing in the bedroom she was sharing with the owner. By using the drug’s location as evidence, the police were able to successfully charge and convict Ms. McKinney of possession of cocaine.

As you can see from the cases above, police can use the surrounding circumstances to establish an individual’s possession of a controlled substance:

1. Any past drug-related criminal activity 2. The smell of the drugs, particularly marijuana 3. Whether or not the person was alone 4. Utility bills for the home in which the drugs were found Continue Reading