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Should you cooperate with the police, aka snitch, when faced with possible drug crimes?

June 21, 2013,

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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.


Everything You Want to Know About Pretrial Conferences in Macomb County

December 7, 2012,

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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


Michigan Does Not Require Probable Cause When You Consent To Search Or Contraband Is In Plain View

April 5, 2010,

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The Fourth Amendment to the United States Constitution, which is part of the Bill of Rights, guards against unreasonable searches and seizures. In general, a search and seizure of a person or his property requires a search warrant based upon probable cause. The search warrant requirement is intended to avoid random/abusive searches by government officials. However, in Michigan, the police are not required to obtain a search warrant and probable cause is not required for property which is in "plain view" or when a person "consents" to a search.

Plain View: Objects which are in plain view of an officer who has a right to be in that position are subject to seizure without a warrant and without probable cause, or his lawful observations may provide grounds for issuance of a search warrant.

Consent Searches: A person who gives a valid consent to a police officer to search his home or vehicle, may be waiving his 4th Amendment rights. The consent must be given voluntarily and courts must determine on the basis of the totality of the circumstances whether consent has been freely given or has been coerced.

I have represented several clients in Macomb County that have said that the police searched closed compartments of a vehicle or in a dwelling and found illegal contraband leading to drug related or stolen property charges. Upon review of the reports, the police will say that the seized property was in plain view or that our client gave consent to search.

Clearly, there is room for abuse by law enforcement authorities to assert that a thing was in plain view or that a party consented to a search in order to avoid inconvenience, delays or situations where there just is not any probable cause to obtain a search warrant. Of concern are situations when a person is alone in his home or vehicle and cannot produce substantiating witnesses to support inappropriate police conduct. For example, the police may pull over a vehicle on a hunch that there are drugs inside. The police may open the vehicle's closed compartments, such as the trunk or glove box. If the police make a lucky discovery of drugs or stolen property, they may attempt to validate the search under the "plain view" or "consent" exceptions to the search warrant requirement.

Our Macomb County criminal defense lawyers have been able to defeat improper searches if the consent was obtained by threats or coercion or if the traffic stop was random or pretextual. Our position in such situations is that if the initial intrusion is invalid; anything that is seized becomes inadmissible under the "fruit of the poisonous tree" doctrine. The prosecuting attorney has the burden to establish the validity of the intrusion and the voluntariness of the consent by direct and positive evidence.

Video: How to Refuse a Police Search

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