This publication is dedicated to the topic of drug crimes involving “possession” (as opposed to the more serious felony drug crimes for delivery). This extensive analysis is based upon our firm’s experience in handling drug crimes throughout Macomb County, especially in the 37th District Court (Warren, Centerline), 41-A District Court (Shelby Township, Utica, Macomb Township, Sterling Heights), 41-B District Court (Clinton Township, Harrison Township, Mount Clemens), 42-1 District Court (Romeo, Washington Township) and 42-2 District Court (New Baltimore, Chesterfield Township).
Some of the topics that will be covered in this 2016-2017 Macomb County Possession of Marijuana, Drugs, Paraphernalia Update are:
- Can the police search my vehicle if I a stopped for a non-criminal traffic violation?
- Can I be charged with possession of drugs/marijuana if I did not have them in my possession?
- Can a case be dismissed if someone else is willing to take the rap in the court system?
- Can the police search my vehicle because they claim that they smell marijuana?
- Should I do undercover work (snitch) with the police if I am facing a drug crime?
- Can I be charged with maintaining a drug house if I was in my car and not my house?
- Will I lose my right to Carry a Concealed Pistol (CPL) if I am convicted of a drug crime (possession of marijuana, possession of analogue, possession of heroin)?
- Why is 7411 such a big deal?
IMAGE BELOW: Unedited portion of police report from a recent Abdo Law marijuana case in Eastpointe, Michigan (38th District Court).
The vast drug problem in Macomb County and elsewhere has resulted in limited police resources. In my opinion, the police make pre-textual traffic stops and engage in profiling to maximize their law enforcement efforts. A pre-textual traffic stop is one that usually based some minor traffic violation but allows the police to investigate other suspected criminal conduct during the course of the confrontation. Profiling (based upon age, race, poverty) is universally condemned by the criminal defense bar as a legitimate practice but is considered a valid means to fight the war on drugs in the eyes of the government/police.
Important Legal Ramifications of Drug “Possession” Crimes
- Driver license suspension: The driver’s license of a person convicted of any drug crime will be suspended for a period 180 days with possible restrictions after the first 30 days. License action does not apply when a drug crime is resolved pursuant to HYTA or MCL 333.7411.
- MCL 333.7411: Disposition under MCL 333.7411 will result in a dismissal upon successful completion of probation and will not result in any license sanctions as stated above. There may be only one (1) lifetime dismissal under this provision. This provision applies ONLY to drug use or possession crimes. It does not apply to possession of paraphernalia, maintaining a drug house (discussed in detail below) or to any drug crimes involving the manufacturing (growing) or delivery.
- Concealed Pistol License (CPL): A person convicted of a misdemeanor drug crime will not be able to apply for a CPL for a period of three (3) years. A person convicted of any felony, including all felony drug crimes, will not be able to own or possess a firearm pursuant to both State of Michigan and Federal laws. A person with a valid Michigan Medical Marijuana card is not permitted to purchase a firearm pursuant to Federal laws.
- Excessive possession with medical marijuana card: A person that possesses an excessive amount of marijuana beyond the scope of the Medical Marijuana laws as a patient or caregiver may be charged with a drug crime for possession (misdemeanor) or possession with intent to deliver (felony).
- Section 8 Defense: A person that would otherwise qualify as a patient or caregiver but does not have a medical marijuana card may assert a Section 8 defense (medical purpose) to fight a possession of marijuana case.
- Double penalty for second drug crime conviction: A second drug crime conviction is subject to enhancement under MCL 333.7413 with the potential for double penalty as to incarceration and fines. This can lead to harsh consequences when a person is charged with a drug crime otherwise classified as a misdemeanor, such as possession of marijuana. A second possession of marijuana conviction would constitute a felony (2 years maximum sentence) if enhanced by the prosecutor pursuant to MCL 333.7413. In our experience as criminal and drug crime defense lawyers, the Macomb County Prosecutor’s Office does not hesitate to utilize the double penalty provision when charging for repeat drug crimes.
Misdemeanor or Felony Classifications, Possession of Marijuana, Analogues, Heroin, Cocaine
Again, this publication is intended to provide information for the crimes charged under the Michigan criminal laws that prohibit possession of marijuana or drugs for personal use, as opposed to the more serious felony drug crimes of manufacturing or delivery. All drugs in Michigan are classified from Schedule 1 to Schedule 5 pursuant to MCL 333.7212 of the Michigan Public Health Code. The breakdown of drugs into schedules is based upon the potential for abuse/addiction (Schedule 1 drugs are considered the most dangerous/addictive/abusive). Drug crime penalties:
Possession of Marijuana
10 years, $15,000 fine
10 years, $15,000 fine
4 years, $25,000 fine
4 years, $25,000 fine
4 years, $25,000 fine
2 years, $2,000 fine
1 year, $2,000 fine
1 year, $2,000 fine
1 year, $2,000 fine
90 days, $5,000 fine
Can the police search my car if I am only stopped for a non-criminal traffic violation?
The police may not conduct a search without a valid search warrant or legal grounds to conduct a search without a warrant.
If a person is pulled over or stopped by the police for a non-criminal traffic violation, there is rarely any justification to search the vehicle or occupants. However, the reality in our Macomb County criminal cases indicates otherwise. We are seeing a large number of cases where individuals are charged with possession of marijuana, paraphernalia, analogues or other drugs when the police can invent or find a way to conduct a search (see plain view, plain smell, consent discussed below). In fact, drug crimes involving possession, especially marijuana, consistently show up in higher numbers than other crimes on every criminal docket in our Macomb County Courts. I attribute the increase in drug possession crimes in Macomb County to the widespread distribution of marijuana, heroin and analogue drugs (especially Xanax, Vicodin, Adderall, Norco) which seem to be easily available in every community. The extent of the problem was covered in a recent Detroit Free Press article, Mich drug overdose deaths up 14%; heroin, pain-killers are culprits.
Legal grounds to search a person or vehicle without a warrant
In my opinion, the police ignore many opportunities to stop a vehicle for a marginal or minor traffic violation unless they feel that the traffic stop will yield other fruits.
Once a valid traffic stop is made, the police are in a lawful position to observe their surroundings and make an inquiry. Here are some common factors in drug cases that we have handled in the Macomb County Courts:
- Vehicle is occupied by youthful offenders.
- The traffic stop or confrontation occurs in the late evening hours.
- The traffic stop is for a minor traffic violation or defective equipment.
- The vehicle parked in a dark or suspicious area.
- The police conduct a search pursuant to consent, smell of marijuana or plain view (see explanation below).
- Criminal charges will be pursued or the suspected party will be asked to provide cooperation/undercover work if marijuana or any drugs (even slight quantities) are found.
- In addition to pressing criminal charges, the police may consider seizing any cash and the motor vehicle involved.
Based upon Michigan laws, a search may occur without a warrant under these circumstances:
- Plain view: Objects found in plain view are subject to seizure without any further justification provided that the law enforcement officer has acted legally.
- Consent: The police do not need a warrant or probable cause to search a person or vehicle if they obtain the consent of the party.
- Smell of marijuana: The Michigan Supreme Court has held that the smell, or like plain view, “plain smell”, can justify a search of a car without a warrant.
- Search incident to an arrest: If criminal conduct is discovered following a traffic stop, such as a person driving on a suspended license, the police may conduct a search of the person and an inventory search of the vehicle incident to the arrest. (Driving on a suspended license (DWLS) is a crime, not a civil infraction.
Link to youtube video regarding consent searches: https://www.youtube.com/watch?v=3kVX6NIPzB0
Do the police ever fabricate grounds or abuse the process to conduct a search without a warrant?
Legal arguments arise when the police look into a glove-box or vehicle compartment and claim that a well-hidden illegal substance, such as marijuana or paraphernalia, was found in plain view. Consent searches are also an area of contention that sometimes demand a closer look especially when consent is obtained based upon coercion or threats. Some tactics used by the police to get a party’s consent:
- Threat to obtain a search warrant.
- Threat to get the K-9 dogs to sniff out the dope.
- Claim by police that person or car smells like marijuana but want to obtain consent as a second means to validate a search.
In a related article from the Washington Post, STOP AND SEIZE, see how the police use traffic stops to take hundreds of millions of dollars from motorists not charged with crimes.
HELP: I did not have the marijuana/drugs in my possession but the police charged me with possession!
In the eyes of the law, there is such a thing as being at the wrong place at the wrong time. When the police find marijuana or other illegal property in a vehicle, they may opt to charge only one party, or every party/occupant that can be said to be in “possession” or control of the property.
Actual possession: A person caught red handed with marijuana hidden in his clothing (pocket, bra) is in actual possession and would have a hard time proving otherwise.
Constructive possession: Constructive possession means a person had knowledge of the substance and an ability to control it. This differs from actual possession and would encompass situations where drugs are not found on a person but in an area within his control. For example, assume the police find marijuana or drugs in what we call a “common area” (under a passenger seat, ashtray or on the floor). In these scenarios, the police may charge every occupant with possession under the theory of “constructive possession”.
One person willing to take the blame: In other drug cases that wind up in the system, we may have a single party that is willing to take the rap for others. Under the circumstances, the prosecutor can still argue joint possession or that the party taking the blame lacks credibility.
Should I do undercover work for the police if I am facing drug charges or get a lawyer and go with the court option?
The police may offer leniency or some concession on the drug charges in exchange for cooperation, or what is commonly known as snitching. Undercover drug operations are dangerous and a favorable deal by the police is not assured. Furthermore, undercover activities are often done outside of the court system and without the protection of a lawyer.
The advice of an experienced criminal defense lawyer is crucial when confronted with this option. Engaging in undercover drug deals is not within the comfort zone of most of our Macomb County suburban clients. In fact, our clients have chosen the court option as opposed to snitching more than 90% of the time. In addition, clients have retained our firm following a frustrating episode of cooperation/snitching.
What does it mean if I am charged with maintaining a drug house?
The prosecutor can raise the stakes on mere drug possession charges by adding an additional serious criminal charge known as “maintaining a drug house” when a person:
Knowingly maintains a store, shop, warehouse, dwelling, building, vehicle, boat, aircraft, or other structure or place that is frequented by persons using controlled substances in violation of this article for the purpose of using controlled substances or that is used for keeping or selling controlled substances.
Maintaining a drug house is considered a high court misdemeanor in Michigan that punishable by imprisonment for not more than 2 years, or a fine of not more than $25,000.00, or both. For many purposes, it is viewed as a felony because the punishment consequence is greater than 1 year.
Charged with possession of marijuana, paraphernalia or drugs? It’s not as bad as you think!
When confronted with a drug crime, or the issues surrounding a questionable search, our Macomb County criminal defense lawyers will break down the legal options and make recommendations that are in your best interests. Taking an extreme position to engage in an all out war against the police and prosecutor is not necessarily going to be our recommendation. Other less drastic legal solutions are often at our disposal to resolve a drug case.
Fortunately, drug crimes are legally manageable in the court system. Jail is rarely on the table and plea bargains under special provisions of law can equal a dismissal after a period of probation:
MCL 33.7411: (As discussed in an earlier section of this publication) Subject to an offer by the prosecutor and acceptance by the court: Allows for first time drug crimes involving possession (INCLUDES ALL MISDEMEANOR OR FELONY DRUG USE OR POSSESSION CRIMES) to be dismissed after a period of probation.
HYTA: Subject to acceptance by the court when requested and approval by the prosecutor for offenders age 21-23: Allows for dismissal of drug crimes (INCLUDING DELIVERY) to be dismissed. This provision applies to offenders from age 17 but under age 24. This provision of law may be used more than once as long as the offender is meets the age requirements and the offense is one that is not excluded by HYTA.
Felony Drug Possession: As I have written, 7411 may be utilized to get a dismissal of a felony “possession” drug charge. However, 7411 is not available more than once or for those with a drug crime record. When the answer cannot be found in 7411 or HYTA, our goal may be to negotiate reduction of a felony drug possession charge down to a misdemeanor.
Even repeat drug crime offenders, or those with a prior criminal record, are not necessarily looking at jail. In this regard, we are seeing more compassion exercised by the court system in cases where the offender is willing to engage in substance abuse treatment. In addition, the courts are starting to lighten up on offenders that have a medical marijuana card. Again, the Macomb County Courts will consider a viable treatment plan in lieu of jail in our experience.
Our blogs are based upon our personal experience as criminal defense lawyers. For more information about felony representation, misdemeanor representation, drug crime representation, plea bargaining, sentencing or other areas of criminal law, please feel free to review our website and other blogs published by ABDO LAW.