Michigan Criminal Lawyer Blog

Articles Posted in Felony Cases


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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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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In the course of the last two years there has been a noticeable increase of clients we take on because they have been charged with a fraud crime. Two things are notable about fraud clients, most have little to no criminal history and often do not realize that the charge is a felony. Felonies are always more concerning than misdemeanors because of their stiffer maximum sentences, the fact that it tracks through the Circuit Court/County probation department, can prohibit you from voting, can prohibit gun ownership, restrict your travel, make you ineligible for government assistance (IE welfare), make you ineligible for jury service, and if not a citizen will likely result in deportation. Moreover, many job applications specifically ask if prospective employees have been convicted of a felony. Even a misdemeanor fraud charge can be an awful Scarlet Letter to bear. Having to disclose that you have been in trouble for taking money that didn’t belong to you will negatively affect your ability to find work.

There is a wide range of conduct that can get somebody charged with a fraud crime. Some of these crimes are listed below. Just about anything involving the wrongful taking of somebody else’s money or credit/debit information qualifies as a felony. After the list we will outline defenses and how these cases often play out. These are very abbreviated descriptions of the offenses, for a more in depth discussion please click the links provided.

Financial transaction device: fraudulent use to withdraw or transfer funds. Using a credit card or debit card to withdraw somebody else’s money is a crime. Depending on the amount it can be a misdemeanor or a felony.
Falsification of identity to obtain financial transaction device. Using a fake ID to obtain a credit or debit card is a felony.
Furnishing goods or services – forging signatures or filling out forms. Using somebody else’s credit or debit card to purchase something is a felony. It is also a felony to sell something to such a person knowing that they have an illegal credit or debit card.
Use of revoked or canceled device. Using a revoked (versus expired) credit or debit card to obtain anything of value can be a misdemeanor or felony.
Forgery, alteration or counterfeiting. Duplicating or making changes to a debit/credit card is a felony.
Use, delivery, or circulation under unlawful circumstances. Selling a credit or debit card that belongs to somebody else is a felony. It is further a felony simply to possess somebody else’s card with the intent to sell it.
Stealing, removing, or hiding financial transaction device. Taking somebody else’s card is a felony.
Identity theft. It can be a felony to use somebody else’s personal information to commit any illegal act, specifically to make purchases.
Embezzlement. It is a crime for one who is in a position of trust to take money and convert it to personal use. Typically this is an employee who has access to company money and takes it for their own use.
Fraudulent acquisition of a prescription drug. Using false information to obtain a prescription is a crime.
Uttering and publishing. Using a forged or fraudulent check to procure goods or funds is a felony.

Our office has had success in getting fraud cases reduced to misdemeanors, dismissed, and most importantly keeping our clients out of jail. When considering the full spectrum of criminal behavior prosecutors are most concerned about violent crimes against people. A fraud crime isn’t normally the type that causes psychological trauma to the victim, so really their only loss is money. Where the victim can be made whole through repayment there can often be reductions or concessions negotiated. In a recent case involving the allegation of using someone else’s credit information, we were able to get a 4 year felony reduced to a 93 day misdemeanor which will come off the client’s record after compliance with a short probation.

Moreover, most fraud crimes require an element of intent. Where there was an accident or misunderstanding there may be a valid defense to the case. If we can present a defense theory that there was no criminal intent or intent to defraud the case can be fought on such grounds. People have been falsely charged with crimes before, and if you believe that you are innocent you should get counsel involved immediately. Our experienced litigators are not afraid to fight weak charges by motioning for dismissals and by taking issues to trial.

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Far too often when we are retained for a criminal case, domestic violence, assault crime or drunk driving, a client is also charged with one of the following Michigan felony cases:

These crimes consistently are listed in the top 50 felony cases in Michigan.

Even a simple traffic stop, retail fraud or possession of marijuana offense can lead to egregious consequences when someone attempts to escape or engage in a struggle with the police. Unfortunately, the police may charge a person with resisting or obstruction when they misread the conduct of a person. This is sometimes the case when a person makes abrupt physical movements during an arrest which are interpreted as obstructive or assaultive conduct.

The State of Michigan classifies all resisting or obstruction and fleeing and eluding crimes as felonies! The penalties for conduct which qualifies as resisting, obstructing, assaulting, fleeing or eluding the police are classified according to seriousness of the crime. The seriousness of the crime will depend upon whether an injury or death has occurred.

Maximum Michigan Criminal Penalties for Resisting and Obstructing

  • No injury or death: 2 years or a fine of not more than $2,000.00, or both.
  • Bodily injury requiring medical attention or care: 4 years or a fine of not more than $5,000.00, or both.
  • Serious impairment of a body function: 10 years or a fine of not more than $10,000.00, or both.
  • Causes the death of an individual: 20 years or a fine of not more than $20,000.00, or both.

Maximum Michigan Criminal Penalties for Fleeing and Eluding

In addition to suspension or revocation of the driver license of a person convicted of fleeing and eluding, the following criminal penalties apply:

  • Fourth Degree: No injury or death: 2 years or a fine of not more than $2,000.00, or both.
  • Third Degree: 5 years or a fine of not more than $5,000.00, or both, if 1 or more of the following circumstances apply: the violation results in a collision or accident, the violation occurred in an area where the speed limit is 35 miles an hour or less or the individual has a prior conviction for 4th degree fleeing and eluding, including attempt.
  • Second Degree: 10 years or a fine of not more than $10,000.00, or both, if 1 or more of the following circumstances apply: the violation results in serious impairment of a body function, or the individual has 1 or more prior convictions for 1st, 2nd or 3rd degree fleeing and eluding, including attempt.
  • First Degree: If the violation results in the death of another individual, 15 years or a fine of not more than $15,000.00, or both.

How to Respond when Confronted By the Police

When the police respond to a 9-1-1 call, pull over a motor vehicle or are acting upon a warrant for an arrest, they are placed in a potentially risky situation. The immediate goal of law enforcement officers is to secure the location by identifying parties that pose a threat or need to be isolated until witness statements can be obtained. The police are not involved in the “guilt or innocence” aspects of the case at this junction. For this reason, if you are confronted by the police, try to remain calm to avoid misunderstandings and confusion that could be construed as obstructive. As criminal defense lawyers, we have found that rational, polite, cooperative conduct can act in favor of someone facing criminal charges. By cooperation, I do not mean that you should “spill the beans”. Keep in mind that aside from providing identification, a person does not have to make any statements and has an absolute right to remain silent. You Tube Video Link: Don’t Talk to the Police. It is the job of a criminal defense lawyer to obtain the police reports, do an investigation and prepare a defense strategy for a client charged with a crime such as fleeing, eluding, resisting or obstructing.

What Factors Do Attorneys Consider When Defending Someone Charged With Resisting, Obstructing, Fleeing and Eluding?

When a client is charged with resisting or obstruction and/or fleeing and eluding, our first concern is whether anyone was injured. Assuming an injury did not occur, negotiations can usually go smoothly and our goal is to resolve the case by avoiding a felony conviction. Negotiations are much more complex when a law enforcement officer or our client sustains an injury. When a client is injured, he or she may be contemplating a civil lawsuit against the police or filing an internal complaint with the police department. Civil litigation will invariably lead the government to avoid plea bargaining as it will aggressively attempt to protect itself from damages and protect the integrity of the law enforcement agency involved. Since these scenarios will usually thwart any attempt to seek an amicable resolution of the case, the advice of a skilled criminal defense lawyer and a personal injury lawyer are crucial!

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Oftentimes clients call confused as to why they are being charged with an assaultive crime (assault and battery, domestic violence, etc.) when they believed that they were acting in self-defense. The police have to respond to allegations of violence, and where somebody alleges that they were attacked that will generally be sufficient to get a case brought into court. Sometimes one party will be charged (often the case) and other times both will.

Self-defense is one of the most common defenses in criminal law, and where the defense is successfully put forth it negates a crime of violence. Where we can show that our client acted in self-defense, the prosecution then faces a greater burden at trial. The prosecution must then show beyond a reasonable doubt that the assaultive crime occurred and moreover show beyond a reasonable doubt that the defendant didn’t act in self-defense. The following elements must be shown in order to establish a valid self-defense claim.

1) The defendant must have truthfully believed that the aggressor was going to use physical force against him, her, or a third person. So long as non-lethal force was applied the defendant need not have believed the aggressor was using deadly force.
2) Objectively, the belief of an imminent attack on the defendant must be reasonable. This means that neutrally looking at the defendant’s actions his or her belief that force was going to be used was a rational belief.
The defendant honestly thought the amount of force used was appropriate.
4) Objectively, somebody would find that the defendant used an appropriate amount of force.

This is a pretty classic objective/subjective test – meaning that it must be shown the defendant thought his or her actions were reasonable and further that they were objectively reasonable. If the above elements are shown, self-defense is established, and the defendant is not guilty of the assault crime. Nonetheless, if prosecution shows the following, a self-defense case will fail.

1) That the belief of force or force used by the defendant was unreasonable.
2) That the defendant was the initial aggressor.
3) There was an agreement by both parties to enter into a fight.
4) If more force than necessary was used by the defendant to subdue the initial aggressor.

The following are factors that our office will evaluate in building a self defense case;

1) The relative size of the aggressor to the victim;
2) If the aggressor has a history of violence;
3) Any military or martial arts training;
4) The presence/threat of a weapon;
5) Whether there were multiple aggressors;
6) Social media activity including taunts/threats;
7) And/or prior threats by the aggressor.

Practically speaking what does this mean? The defendant must not have started the fight, must have honestly thought he or she was about to be attacked, and used only enough force to protect him or herself. Oftentimes people being charged with assault DO have valid self-defense claims. If you are being charged with such a crime you would be wise to contact an attorney to discuss the circumstances of your case and evaluate the merits of a possible self-defense claim.

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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

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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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

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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