Michigan Criminal Lawyer Blog

Articles Posted in Federal Crimes Attorney

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?

interrogation room.jpg

There is a pattern of “frequently asked questions” in the field of criminal law. This blog is dedicated to answer a couple of those questions. This blog is not intended to provide a one-size-fits-all dissertation on the covered subjects but only a short synopsis with some other references linked-in for further research if you are interested. It is important to understand that entire law books have been published regarding the Bill of Rights (4th, 5th and 6th Amendments) and other particular legal issues such as “possession“.

Remember: When the mistakes by the police add up, you may be entitled to a dismissal or suppression of evidence. Even minor mistakes may weaken the case to the extent that the charges are reduced.

Can my case be dismissed if I wasn’t advised of my Miranda Rights?
The answer is usually NO with some exceptions.

This is probably the Number 1 question that we are asked when someone is charged with a crime. In 1966, the Supreme Court held that Miranda Warnings by the police are required to protect a person suspected of a crime pursuant to the Fifth Amendment right to avoid self-incrimination during police interrogation. When the police have other evidence to proceed against a person, the person’s own statements may not be necessary. Therefore, should the person’s own statements be excluded (based upon Miranda violations), the State may proceed against the person based upon other independent evidence and witnesses. We are often asked this question in the realm of drunk driving cases. Consider the following example:

Example: Assume that a person admits to drinking 4 beers after being stopped for a DUI. The accused may argue that the statements are not admissible because he wasn’t given his Miranda warnings or because the statements were involuntary. Even if the attorney is able to have the statements suppressed (inadmissible at trial), the prosecutor may still proceed with other evidence such as the chemical test (BAC result from blood or breath), witnesses (police or civilians) who viewed the conduct of the accused, the accused’s ability to perform Field Sobriety Tests (FST), etc.

Please be advised that when statements of the accused are suppressed, the Court may also suppress any other evidence derived from the inadmissible statements pursuant to the Fruit of the Poisonous Tree doctrine. When substantial evidence is suppressed (held inadmissible), the case may be dismissed or quashed.

Again, please remember that entire books and treatises have been written on the subject of Miranda Warnings (BOOK LINK).

Thumbnail image for Thumbnail image for My_Miranda_Rights.jpg

Do I have the right to make a phone call if I am arrested?
The answer is NO.

I do not know of any law in Michigan that allows someone the right to make a phone call upon being arrested. However, some police agencies have adopted regulations which allow an arrested person to make a phone call in the furtherance of Miranda Warnings which provide that a person has a right to remain silent and a right to an attorney
The right to make a phone call is a misnomer since it is actually not a right at all. It is merely a formality which allows an arrested party to call family members or an attorney. Should the police deny a person the right to call an attorney, there may be a legally arguable Constitutional issue. At the very least, we would argue to suppress any statements or information gathered from a suspect who is questioned after being denied a phone call (to his attorney) on the 5th and 6th Amendment grounds (self-incrimination and denial of right to counsel).

Take another look at the image which is posted at the top of this blog.
This scenario raises at least 14 questions which our criminal defense attorneys would ask:

1. Is the person/suspect in custody (not free to leave)?
2. Was the person/suspect validly arrested or detained?
3. Is the person/suspect under the influence of drugs or alcohol?
4. How long has the person/suspect been detained?
5. Was the person/suspect intimidated by the officer (armed and in uniform)?
6. Is the person/suspect suffering any mental condition?
7. Was the person/suspect coerced, threatened or intimidated?
8. Was the person/suspect denied nutrition and rest room facilities?
9. Did the person/suspect ask for an attorney during questioning which was denied?
10. Does the person/suspect take any medications which could impair his judgment?
11. Was the person/accused deprived of sleep or rest?
12. What is the age, intelligence level (IQ) of the person/suspect?
13. WAS THE PERSON ADVISED OF HIS MIRANDA RIGHTS?
14. WAS THE PERSON ALLOWED TO MAKE A PHONE CALL?

Violation of Miranda Rights or the ability to make a phone call can provide a basis for a motion to quash (dismiss) or suppress evidence. For this reason, every detail and fact is important when you talk to your lawyer.

Some excellent video references:

Ten Rules When Dealing With Police (Video)
Don’t Talk to the Police (Video)
The Proper Way to Handle a Police Stop (Video)

If you have a question, please visit our website and send the question which we will attempt to answer and may even consider making it the subject of a future blog.

Links to some other frequently asked questions:

Can I be charged with a crime if only one person says I did it and there are no other witnesses or evidence?

Do court appointed lawyers work for the police and prosecutor?
Continue Reading

fbi-4-30-09[1].jpgIn the United States, there are crimes which may be prosecuted at the State level based upon violations of State laws. A Federal crime is one which involves a violation of a Federal law. Many criminal offenses may fall under the jurisdiction of both the State and Federal laws and either or both branches of government may prosecute. The doctrine of double jeopardy does not preclude both State and Federal prosecutions under the doctrine of dual sovereignty.

There are literally thousands of Federal laws. Many Federal crimes are listed in Title 18 of the United States Code. In addition, there are several Federal agencies with authority to investigate Federal offenses including: Federal Bureau of Investigations (FBI), Drug Enforcement Agency (DEA), Alcohol Tobacco and Firearms (ATF), United States Marshal Service (USMC), United States Secret Service, Immigration and Customs Enforcement, United States Postal Inspection Service and Homeland Security. Postal Inspectors investigate any crime in which the U.S. Mail is used to further a crime by use of the mail, telephone, or on the Internet (mailfraud).

In Michigan,United States Districts Courts (Federal courts) are located in Detroit (Eastern District), Lansing, Grand Rapids, Ann Arbor, Port Huron, Flint and the upper peninsula. Federal criminal defense attorneys are required to adhere to the Federal Court Rules. The formalities, procedure, sentence guidelines and process of the Federal courts are inherently stricter than the State courts. All of this means that anyone faced with a Federal criminal investigation or Federal criminal charge(s) should retain a qualified Federal criminal defense lawyer.

STOLEN PROP.jpg

When a client is charged with a crime which involves “possession”, our Macomb County criminal defense attorneys delve into the facts and details of the case, along with the applicable Michigan laws, which pertains to the issue of possession. For example, all drug crimes require the element of possession. This blog is about the applicable Michigan laws which are applied or argued when the issue of “possession” is an element in a criminal case.

Many Michigan criminal laws, especially drug crimes and stolen property laws, contain an element or requirement of “possession”. Possession of child pornography cases invariably involves legal arguments by criminal defense lawyers and prosecutors regarding the issue of possession. In this regard, specialized computer forensics or other technical evidence is used by law enforcement to establish the element of “possession” and by criminal defense attorneys to contest the issue. Michigan laws which make possession in and of itself the crime allows for arrests and convictions without proving the use or sale of a prohibited item.

There are several terms which are used to describe different types of possession. For example, possession may be constructive, illegal, joint, legal, physical, or sole. Historically, actual possession was required for a criminal possession conviction. In other words, a person could not be charged with a crime unless he was “caught red handed” with the illegal property. In the 1920s, courts expanded criminal possession to include “constructive possession”. In an early Michigan criminal case to use constructive possession, the court found a defendant guilty of possessing illegal liquor in trunks in the actual possession of another person (People v. Vander Heide, 211 Mich. 1, 178 N.W. 78 [1920]). Later cases, especially narcotics cases, have continued to expand the law of criminal possession.

Possession versus Ownership: Possession is not the same as ownership. The phrase “possession is nine-tenths of the law,” is often used to suggest that someone who possesses property can face legal consequences. The owner of an object may not always possess it.

Actual possession is what most of us think of as possession-that is, having physical custody or control of an object” (United States v. Nenadich, 689 F.Supp. 285 [S.D. N.Y. 1988]). Actual possession, also sometimes called possession in fact, is used to describe immediate physical contact. Frequently, a set of facts clearly indicate that an individual has possession of an object but that he or she has no physical contact with it. To properly deal with these situations, courts have broadened the scope of possession beyond actual possession.

Constructive possession is a legal theory used to extend possession to situations where a person has no hands-on custody of an object. Constructive possession is frequently used in cases involving drugs, guns and stolen property in Michigan criminal cases. Constructive possession, also sometimes called “possession in law,” exists where a person has the ability to control the object even if the person has no physical contact with it. For example, people often keep important papers and other valuable items in a bank safety deposit box. Although they do not have actual physical custody of these items, they do have knowledge of the items and the ability to exercise control over them. For legal purposes, they are considered to have constructive possession of the contents of the safety deposit box.

Link to Blog: Proving Possession In Drug Crimes
Continue Reading