File sharing sites on the internet allow the access of digital content from other computers connected on a peer to peer (P2P) network. A peer (personal computer user) may copy the contents such as videos, music, photographs or books of a peer (another personal computer).
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?
As an active criminal defense attorney in Macomb County, our firm is frequently asked whether a criminal record can be totally erased, disappear or vanish. Unfortunately, the answer is no.
The Michigan Law Enforcement Information Network (LEIN)
The moment an arrest occurs, or a warrant is issued by a court, a record is generated on the Michigan Law Enforcement Information Network (LEIN). Only criminal justice agencies or other authorized agencies (courts) are granted access to the LEIN. A law enforcement officer or court employee who abuses the system faces discipline. This link provides a list of entities who are authorized to utilize the LEIN system.
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.
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
In 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.
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 ). 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.