Michigan Drug Charge Lawyer

Common Defenses To Drug Crime Charges

Being charged with a crime is a very different matter than being convicted of one. The law states that you are innocent until proven guilty, so until the judge or jury decides your case, you are innocent of any charges that are brought against you. In fact, if you have merely been charged with a drug crime, there are several defenses that could result in your charges being dismissed.

Only an experienced criminal defense lawyer will be able to look at the facts and evidence of your case and determine if any such defenses exist. While each case is different, you should retain the services of a Michigan drug crime lawyer as soon as you become aware of the charges being brought against you. Any delay may cause you to miss out on possible defenses and strategies that could have been used to help get your case thrown out. Here are some of the defense tactics used in drug crime cases.

Illegal Searches

One of the more common defenses to drug crimes involve illegal searches performed by law enforcement. The police cannot simply search you or your property whenever they feel like it.  You have a right to privacy in your home and car. The law says that the police must have good reasons in order for them to invade your privacy and perform a search. In most cases, a warrant is necessary before the police can look through your home, car, or place of business. In order to obtain a warrant, the police must first apply for one through a judge, who will then decide whether the police should be issued one. However, certain exceptions allow the police to search without a warrant. These exceptions are known as exigent circumstances and typically involve an emergency situation.

If your lawyer can show that the police illegally searched you or your property, then the evidence that was discovered during the search cannot be used to convict you. This is known as the exclusionary rule. Without the excluded evidence, the prosecutor may have no choice but to withdraw the charges against you.

Unlawful Search Of Your Home

The law provides a high level of protection against unreasonable searches of your home. Our founding fathers recognized that our expectation of privacy may be greatest inside our homes. As a result, in most cases the police cannot search your home without a warrant. You have a right to a copy of that warrant and to look it over. Even if the police have a warrant, they cannot simply look in any place that they want. Warrants must be specific to what the police are looking for. For instance, if the police are looking for a meth lab, they cannot search your sock drawer. They must limit their search to areas where the evidence they are seeking may be located.

If the police are asking for permission to search your home, then it is likely that they do not have a warrant to do so. Critically, if you agree to allow the police to enter your home and search it, you probably will not be able to later claim that it was an illegal search. You should never consent to a search of your home without first speaking with your lawyer.

Unlawful Search Of Your Vehicle

Michigan police begin their investigation of many drug crimes by first pulling over (stopping) a vehicle. But in order to do this, the police need a valid reason. In other words, they typically cannot pull you over at random. They must show that they possessed a reasonable belief that you committed a crime. This can be something as minor as illegal tint on your windows. If the police cannot show that they had a valid reason to pull you over, then any evidence that they discovered as a result cannot be used against you at your trial.

Just as important, if the police want to search your car, then they must be able to show not only that they had a valid reason to pull you over, but that they also had probable cause to search. In other words, the police must be able to show that it is likely that contraband is present. This could be illegal drugs, weapons, or paraphernalia. An example of probable cause to search may include: the smell of illegal drugs, illegal drugs in plain view of the officer, or the presence of drugs detected by a drug-sniffing dog. Just as in the case of an illegal stop, if the police cannot show that they had probable cause to search your vehicle, then any evidence they obtained from the illegal search cannot be used at your trial.

Illegal Search Of Your Body

You may come into contact with police outside of your home or car. In these cases the police cannot search your clothing or body simply because they want to. The police may be permitted to pat you down to check for weapons, but this must be limited to the exterior of your clothing. They generally cannot rummage through your pockets or belongings without your permission or a warrant.

It is important to remember that if you were pulled over in your vehicle by the police and they ask you to step outside so they can pat you down, they still must have had a valid reason to pull you over in the first place. In this scenario, if the police discover drugs or weapons on you during the pat-down, but they did not have a valid reason to pull you over, then the illegal items that they found may not be used as evidence against you.

Unlawful Search During A Sobriety Checkpoint

You may have seen OWI (Operating While Intoxicated) checkpoints while driving in Michigan. Under certain conditions, the police can lawfully stop your vehicle if they are conducting an OWI checkpoint. In this scenario the police are not required to give a reason for stopping you, as they are typically stopping every car that goes through the checkpoint. Still, the stop must be for the purpose of determining whether you might be operating your vehicle while under the influence of drugs or alcohol. The police cannot use the sobriety checkpoint as their main reason for searching your car. In other words, they cannot use the sobriety checkpoint as the basis to start investigating you for a drug trafficking crime.

Entrapment

It is common for the police to use undercover agents or informants to investigate drug crimes. While these tactics can be done legally, there is a limit on what the police can do when they perform a setup. Entrapment is when the police instigate or coerce you into committing a crime. If you can show that the police entrapped you, then you may be found not guilty at trial. In Michigan, there is a two-part test to determine if you were entrapped by the police. You must show that:

• The police engaged in impermissible conduct that would induce an otherwise law-abiding person to commit a crime in similar circumstances, or,
• The police engaged in conduct so outrageous that it cannot be accepted.

There are many factors that go into whether entrapment occurred. Just because the police used a sting operation, or set you up through an informant, that does not mean that you were entrapped. You must be able to show that you were forced or encouraged to commit a crime that you normally would not have committed through the government’s reprehensible conduct. If you have a history of selling illegal drugs and are approached by an undercover agent to make a drug sale, then you may have a difficult time successfully using the entrapment defense.

What You Possessed Was Not A Controlled Substance

In order to be found guilty of possession, the prosecutor must be able to prove that what the police found on you was in fact an illegal drug. This is typically done by having the substance tested at a laboratory. If the substance does not turn out to be a controlled substance, then you may have your possession charge dismissed. An example would be the police finding a white powdery substance in your car that, when tested, turns out to be talcum. In that scenario you cannot be found guilty of cocaine possession.

The Drug You Possessed Is Now Legal

In late 2018 Michigan became the first Midwestern state to legalize recreational marijuana. If you are following the laws concerning the amount that you can possess or cultivate, then you should be able to use it without being afraid of being charged with a drug crime. Critically, there are also laws in place that control where you can purchase and consume marijuana. Under Michigan law, you are not permitted to use marijuana in public, but only at home or in a private space. Anyone under the age of 21 is not permitted to possess, consume, or purchase marijuana. Additionally, you can only legally purchase marijuana at state-licensed dispensaries. While it is legal to transport marijuana, there are limits on the amount.

Marijuana is also now legal in Michigan for the treatment of certain qualifying medical conditions. Unlike recreational marijuana, you will need a prescription from a doctor in order to legally possess medical-grade marijuana.

If you have been charged with a marijuana drug crime and you have proof that you were legally allowed to possess the drug, then your lawyer should be able to show that you have committed no crime. Still, you must remember that even though marijuana is now legal, regulations exist that could result in a criminal charge if you do not abide by them. This includes the prohibition on operating a motor vehicle on public roadways under the influence of marijuana. With new testing procedures in place to verify the presence of the drug in your system, this should be treated just as seriously as a drunk driving charge.

You Have A Prescription For The Drugs You Possessed

Some of the drugs on the controlled substances list are pharmaceutical drugs. These are typically pills that are prescribed by a doctor for the treatment of a medical condition. You are permitted to possess and consume these drugs if you have a valid prescription from your doctor. So if you are charged with possession of a controlled substance but can prove that it was prescribed by your doctor, you may be able to have the charges dismissed.

You should be aware, however, that a prescription is typically for a certain amount of a controlled substance and does not allow you to possess an unlimited amount of the prescribed drug. Even if you have a prescription, you may still face a possession charge if you have an amount that exceeds what has been prescribed to you.

You Were Unaware That You Had Drugs On You, Or The Drugs Did Not Belong To You

The law in Michigan says that in order for you to be found guilty of drug possession, you must knowingly possess those drugs. What this means is that the prosecutor must prove that you knew or should’ve known that illegal drugs were in your possession. Just because drugs are found in your home or car does not necessarily mean that they belonged to you or that you knew they were there. A few examples of a lack of knowledge are:

• You give a ride to a friend who accidentally leaves a bag of cocaine in your backseat. After you drop off your friend, you are pulled over for a broken taillight. While writing your ticket the police see the bag of cocaine on your backseat. You are then arrested and charged with cocaine possession. At trial, your lawyer may be able to argue that you were not aware of the drugs, that they did not belong to you, and as a result, the charges should be dropped.
• The police are called to your residence for a domestic disturbance involving two of your roommates. When the police arrive, they notice what appears to be heroin and hypodermic needles on the coffee table in a common area. As a result, the police charge you and your roommates with possession and paraphernalia. Your lawyer may be able to argue that the charges against you should be dismissed because the prosecutor cannot prove that the drugs belonged to you.

The Police Planted The Drugs

While most police officers are honest and ethical, some are not. In fact, police officers have been caught planting evidence at the scene of a crime or on the person that they were arresting. This behavior is clearly unacceptable and illegal. If your lawyer can show that the police planted drugs on or near you, then your charges should not only be dismissed but the officers in question should be brought up on charges themselves.

The Evidence Was Not Handled Properly

What normally happens when you are arrested for possession is that the police seize and store the drugs that they claim they found on you. The drugs are then typically transported to a laboratory to be tested. During this process, the drugs pass through a number of different hands. The prosecutor must be able to show that each person that came into contact with the drugs handled them properly. If there is any time period where the drugs were unaccounted for or mishandled, then your lawyer may be able to call into question the test results by arguing that the drugs were possibly contaminated.

Related to this issue is the possibility that the lab itself was compromised. There have been a number of high-profile cases over the years where laboratory technicians were caught forging test results or were simply unqualified to perform them. Because the test results were called into question, many people who were initially convicted of crimes were either granted new trials or had their charges thrown out.

How The Police Investigate You In Michigan

The law allows Michigan police to use a number of techniques to investigate drug crimes. These tactics range from simple observations to the high-tech use of drones taking pictures from the sky. If you are under suspicion of committing a drug crime, then chances are the police are using one of the techniques listed below to gather the evidence that they will need to arrest and charge you.

Monitoring usually serves as one of the more common tactics police use to make a drug crime arrest. Also known as a stakeout, the police often set up shop in an area known for drug activity. Stakeouts depend on the element of surprise, so the police are often invisible to the targets of their investigation. Through the use of cameras or listening devices, the police wait until they observe a drug transaction, and then pounce and make an arrest. Some stakeouts take days to develop while others seemingly have a revolving door of drug activity.

A stakeout may also be done solely for the purpose of tracking your movements. Police may secretly follow you to determine where you go and who you interact with. This is typically done so that the police can build their case against you by gathering evidence about your daily activities. The photos and video they take of you may be used later at your trial to establish a link between you and known criminals.

Tapping Your Phone Or Other Electronic Devices

When the police want to tap your phone and listen to your calls, they typically need the warrant to do so. In the application for the warrant, they must state the reasons why they need to listen in on your calls. If the warrant is approved, the police can then begin to intercept and record your phone conversations. Any evidence they gather from your conversations may be used to convict you of a drug crime.

This investigative technique does not just apply to phone calls: the police may also be able to track your location by obtaining cell tower data from your cell phone provider. This tactic is often used to show that you were at a certain location when the criminal activity occurred. The police can also intercept your text messages and emails.

If you have been arrested for a drug crime, the police may ask to look through your cell phone. The information contained in your call log and the memory card of your phone can be used to establish your movements and activity. If you allow the police to examine your phone, they are free to use the information they find against you at your trial. If you refuse to give consent, they would likely need a warrant to go through your phone.

Use Of Informants

Informants are individuals who have agreed to supply information to the police concerning criminal activity. Informants (also known as snitches) are not police officers but civilians working with the police. Often informants have been promised something in return for providing the police with information. Believe it or not, some informants are paid cash money for supplying the police with criminal intelligence! Regardless of their motivation, informants are an integral part of many drug crime investigations, as they may be able to go places where the police cannot.

Drug Task Forces

Due to the surge in opioid overdoses over the last ten years, the state of Michigan has developed drug task forces to combat this epidemic. Drug task forces are government-funded entities made up of state, local, and/or federal law enforcement officers. Many task forces explicitly focus on stemming the tide of drug importation and distribution throughout the state and its surrounding area.

A common tactic of a drug task force is to set up controlled buys from known drug suppliers with a focus on mid-level to major drug dealers. The goal of these buys is to find out the identity of the major players in the drug trade. Drug task forces typically do not focus on low-level dealers or buyers.

Social Media

Recently the police have begun to take a new approach to investigate drug crimes by soliciting tips through social media. Many law enforcement departments have created social media accounts to engage the public in helping law enforcement keep their communities safe. Police also use social media to track known drug dealers. The evidence gained from a suspected drug dealer’s social media account can be used in court to convict them of a drug crime or to prove a parole or probation violation. Law enforcement generally does not need the warrant to look at a public social media page.

Types Of Evidence Used In Michigan Drug Crime Cases

• Photos
• Videos
• Audio recordings
• Police officer testimony
• Witness testimony
• Cell phone records
• Informant testimony
• Financial records
• Text messages
• Emails

Drug Distribution Evidence

• Packaging material
• Traced bills
• Scales
• Postal mail
• Cell phone data

Drug Manufacturing Evidence

• Lighting devices
• Mixing chemicals
• Laboratory equipment
• Excessive security features
• Altered plumbing and irrigation systems

Reasons for Exclusion Of Evidence In Michigan Drug Cases

Whether your attorney can get the evidence of your drug crime excluded will be a key factor in how your drug crime case will unfold. In most cases, there will be a number of pretrial hearings where a judge will decide which evidence can be used to convict you and which must be thrown out or excluded. Evidence that is excluded cannot be brought up at all during your trial, but the prosecutor may still decide to take your case in front of the judge even if certain evidence has been tossed. It will be the job of your lawyer to examine the evidence against you and make the arguments as to why it should be excluded. If they are successful, the odds of having your drug case dismissed greatly improve. Here are some of the more common arguments why evidence against you should be thrown out.

Unlawful Searches And Seizures

The U.S. Constitution says that you have the right to be free from unreasonable searches and seizures. What this means is that in order for the police to search you, they must have a compelling reason. They cannot search you based on a hunch or a gut feeling. The police know this, and they will often ask for your permission to search your home or vehicle to try to get around it. If you agree to allow the police to search you, then they have not violated your right to be free from unreasonable searches.

Notably, if you refuse to give consent and the police do not have a warrant to search, then any evidence they find may be excluded from being used at your trial. Some examples of when the police can search or seize evidence without a warrant are:

• You are asked by the police if they can search and you give them consent
• Exigent circumstances exist (e.g., the police believe criminal evidence is present and reasonably believe it may be destroyed or removed before they can get a warrant)
• The evidence was in plain view of the officer (e.g., drugs sitting on your lap when you are lawfully pulled over by the police)
• The police search you or your vehicle after you have been lawfully arrested (also known as a search incident to an arrest)

If none of the exceptions apply and the police did not have a warrant, then your lawyer may be able to argue that the search and seizure of evidence violated your rights. Only an experienced criminal defense attorney will be able to analyze the facts and circumstances surrounding the search to determine if there is an argument for the evidence to be excluded. It is also important to note that the exclusion of evidence does not just relate to the drugs themselves, but to any other form of evidence found by the unlawful search. So if your right to be free from unreasonable searches is violated, then all evidence that was gathered as a result of the unlawful search must be thrown out.

Consent To Search Was Obtained By Force Or Fraud

When the police are asking if they can search your home or vehicle, it is likely because they know they are not allowed to without a warrant. Still, when they ask for consent, they cannot trick you or make it seem like you have no choice. In order for consent to be valid, it must have been given of your free will. If the police threaten you or lie to you concerning your right to refuse a search, your lawyer may be able to argue that your consent was invalid and any evidence gathered, as a result, should be tossed.

Proving that your consent was not valid may be difficult, as it can often come down to your word versus the officer’s. Fortunately, body cameras may capture the entire interaction that you have with an officer and could serve to support your claim. Your lawyer can request to see this footage and potentially use it to get the evidence against you thrown out.

Miranda Warning Violation

Evidence comes in all shapes and sizes, and some of the most damning evidence comes in the form of a confession. If the police suspect that you have committed a drug crime, then they will likely want to speak with you in order to obtain a confession. Fortunately, the law provides some protection against forced confessions. The Miranda warnings (also known as Miranda rights) were developed by the U.S. Supreme Court and provide you with the right to remain silent and the right to have an attorney present during questioning. The Miranda warnings are as follows:

You have the right to remain silent. Anything you say can be used against you in a court of law. You have the right to have an attorney present now and during any future questioning. If you cannot afford an attorney, one will be appointed for you at no cost

However, these rights only apply if you are in police custody while you are being interrogated. So if you blurt out an incriminating statement before the police have the chance to inform you of your rights, then that statement may be used against you at your trial. But if the police do not read you the Miranda warnings, or continue to question you after you have asked for your lawyer, then your lawyer may be able to argue that any statements that you made to the police should be excluded from your trial.

Read more in our blog: Miranda Rights in Michigan