Medical Marijuana

Article by Macomb County Drug Crimes Lawyer: Cooperation/Acting as an Informant for the Police

March 1, 2021 | Abdo Law Firm

What does it mean to provide cooperation, snitch or be an informant for the police?

Cooperation, using the little fish to get the big fish, is a major law enforcement tactic utilized everywhere and every day in the United States to gain information that would otherwise be next to impossible to obtain. This practice is also used extensively in the County of Macomb as a means to frustrate illegal drug activity. An offer to cooperate can arise during a criminal investigation or following an arrest or at any stage of a criminal case.

The concept of “cooperation” with the police (also called “snitching” or “acting as an informant”) occurs when the police utilize an individual to obtain information that would otherwise be difficult to discover. Those asked to provide cooperation are usually in trouble with the law (busted for a drug crime) and are promised consideration in the legal system in return for providing assistance. Assistance is expected to be substantial and typically involves undercover work with narcotics agents or special units. The informant is rarely advised of his or her rights and other options. The informant may later be required to testify as a witness in subsequent court proceedings unless given protection as a confidential informant (CI).

The use of informants by the government has existed for more than a 1,000 years and remains widely used today by the government and the police to:

Make other busts, raids, seizures,
Support an arrest or search warrant
Bolster connections to infiltrate criminal enterprise(s),
Flush out targets or bigger fish, and,
Make progress in an investigation that is stuck in the mud.

Getting into Something that is Over Your Head

As we explain in this publication, cooperation or snitching, is a tool used by law enforcement officers to combat criminal activity and is most often associated with drug crimes. Cooperation with the police is seldom ever considered because drug crimes, especially for first offenders, can be resolved with excellent results in most cases without working with the police. In addition, you need the advice of an attorney to explain your legal rights and all of the possible risks associated with cooperation, including the following:

Your safety is not assured
Your assistance may be declared insufficient by the police
Criminal charges may still be pursued against you
Cooperation ends when the police say it ends
Cooperation may require engaging in bigger drug deals than justified under the circumstances to get a deal in the legal system

Cooperation (snitching) is usually arranged while the accused person is caught red handed while engaged in illegal activity or in police custody for a criminal offense. Unfortunately, the police may use these scenarios as opportunities to take advantage of the situation by threatening prosecution or by persuading the party with incentives to cooperate that include: immediate release from jail and consideration to get all criminal charges dropped. Upon being released from jail, the unwary person will be instructed to contact an undercover officer for further instructions and discouraged from contacting a criminal defense lawyer. An individual that immediately chooses this route is placing his or her trust with the same law enforcement officers that will be testifying for the prosecution should criminal charges later be pursued.

What the Police Won’t Tell You about Cooperation Can Hurt You

The police are not required to give legal advice or explain every other possible option when attempting to engage an individual to become an informant. The police will not tell you that your case can be worked out without cooperation or that an attorney can fight the case if it is based upon an illegal search. Here are just a few other legal rights that you forego when you agree to cooperate with the police:

4^th Amendment Constitutional right to be free from unreasonable searches
5^th Amendment Constitutional right to remain silent
6^th Amendment Constitutional right to an attorney
Your right to assert legal defenses to the alleged criminal charges (mere presence, lack of possession)
Your right to get your drug crime anywhere in Michigan dismissed pursuant to MCL 333.7411 or HYTA

In addition to the above, the police won’t tell you that most drug crimes are manageable in the court system with the services of a criminal defense lawyer. Scare tactics are not uncommon as a means to harvest an informant who is lead to believe that there is no hope in the legal system without providing cooperation. In fact, the majority of offenders are not looking at jail, may be eligible to get a felony reduced to a misdemeanor and have other excellent options to get the charge(s) dismissed pursuant to MCL 333.7411 or HYTA without providing any cooperation whatsoever to the police!

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 Federal 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.”

Proving Drug Possession: “Actual Possession” is not always required

March 1, 2021 | Abdo Law Firm

Every element of a crime must be proven beyond a reasonable doubt

Every crime is made up of parts that are called elements. When a person is charged with a crime, the prosecutor is saying that there is sufficient evidence to establish each and every element of the crime beyond a reasonable doubt. The prosecutor does not always get it right. Many criminal cases result in an acquittal because an essential element of a crime has not been established beyond a reasonable doubt. In this ABDO LAW publication, the element of “possession” is explained in relation to drug crimes.

Illegal possession of drugs may constitute a felony

Possession is a necessary element in drug crimes and property crimes (receiving and concealing stolen property). For a person to found guilty of a drug crime, the prosecutor must establish that a person intentionally and knowingly possessed the illegal drugs in question. Most drug crimes are felonies that carry serious criminal penalties which can include possible jail, substantial fines and driver license suspension:

Drug Crime	Maximum Jail	Maximum Fine
Possession of MDMA	10 years	$2,000.00
Possession of methamphetamine	10 years	$2,000.00
Possession of heroin or cocaine	4 years	$25,000.00
Possession of analogues	2 years	$2,000.00

In another article, we explain how drug possession crimes in Michigan (including all Macomb County District Courts) can be dismissed pursuant to MCL 3333.7411.

“Possession” is a necessary element in drug crimes

The term possession has different meanings in the criminal justice system. A person may be charged with possession of drugs if he or she has “actual possession” or “construction possession”. Because the term “possession” has different meanings and the potential for different interpretations, it is often the subject of legal arguments in criminal cases.

Historically, actual possession was required for a conviction of a criminal case with the element of possession. 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 era of liquor prohibition, courts expanded criminal possession to include “constructive possession”. Constructive possession does not require an individual to have the physical possession of the illegal property.

Possession does not require ownership: Possession is not the same as ownership. Several criminal laws make it a crime to “possess” something that is forbidden or illegal.

Actual possession is what most of us think of as possession, that is, having physical custody or control of an object. 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 (constructive possession). 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.

Michigan Cases: Interpretation of constructive possession

People v Nunez (2000): In this case, police a large stash of cocaine in a home occupied by several individuals. 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.

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. By using the drug’s location as evidence, the police were able to successfully charge and convict Ms. McKinney of possession of cocaine.

Operating Under the Influence in Michigan: The ‘Koon’ Decision a Reminder of ‘Zero Tolerance” Approach to Drugs and Driving

May 3, 2012 | Abdo Law Firm

www.abdolaw.com.jpg The recent Court of Appeals case, People v. Koon (which can be read in its entirety here), illustrates how Michigan deals with drugged driving. Oftentimes clients are under the misguided impression that a prescription or a medical marijuana card offers them immunity from prosecution for operating a vehicle while intoxicated. However, Michigan law has two provisions to deal with this. For Schedule 1 narcotics (cocaine, heroin, ecstasy, for example) where there is ‘any amount’ of the illicit substance the driver can be convicted. Alternatively, impairment must be proven where a client is charged with driving under the influence of a prescribed medication.

The Koon case deals with 3 issues; 1) the ‘any amount’ provision of MCL 257.625(8); 2) Michigan’s Medical Marijuana Act; and 3) marijuana that was ingested hours before the defendant operated the automobile. In this instance, the defendant had a medical marijuana card and had used marijuana five to six hours before driving his automobile. Nonetheless, marijuana’s active ingredient THC, which can remain in one’s system for weeks after it’s ingested, showed up in Mr. Koon’s blood. Both the District Court and Circuit Court held that the Medical Marijuana Act was a defense to the zero tolerance law. Unfortunate for Mr. Koon and other card holders, the Court of Appeals did not.

The opinion, which I recommend those visiting this blog take the time read (it’s not too complicated), reasons that the Michigan Medical Marijuana Act does not carve out an exception to the ‘any presence’ law. The MMMA does not reschedule marijuana (it remains Schedule 1) and further specifically states there are no protections for those driving under the influence of marijuana. The issue may be taken up with the State Supreme Court in the future.

What are the takeaways from this case? Most specifically as it pertains to marijuana card holders, they remain at risk driving long after they ingest marijuana. The result does seem harsh given that THC can remain in one’s system for weeks after it is initially used. Nonetheless, this seems to shed some light on the way Courts are interpreting that law. Further, this should serve as a reminder that the State does not take lightly to drugged driving. If you are being prosecuted for operating an automobile under the influence of any drug, a marijuana card or a valid prescription does not offer blanket protection. This is likely an issue that will continue to take shape in the Legislature and Court of Appeals over the coming years.
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MMMA Remains Controversial as Ann Arbor and Huntington Woods Begin to Regulate

May 4, 2011 | Abdo Law Firm

Recently Ann Arbor and Huntington Woods have provided some guidance in Michigan’s fractured, complex, and incredibly controversial Medical Marijuana Act. In Ann Arbor, while the city did not weigh in on whether or not to allow additional dispensaries (currently it has 20), it decided that cultivation facilities do not need licenses. Council Member Stephen Kunselman echoed the sentiments of the MMMA and said that he hoped to maintain caregiver confidentiality. Kunselman stated he doesn’t want the city to gather information that could wind up in the possession of the feds. Additionally, the city decided not to differentiate between residential and non-residential grow facilities. However, Ann Arbor DID limit the amount of plants to 72. This sheds light on a question frequently posed to us, whether grow cooperatives are permitted under the MMMA.

Somewhat similarly, Huntington Woods adopted regulations for those growing marijuana as caregivers. It decided to prohibit these businesses from being run out of homes. Further, the city has delineated certain districts where these businesses must be located. Additionally, like any other business operating within the city, caregivers will have to submit a site plan to the Planning Commission for approval. However, unlike Ann Arbor, Huntington Woods stated that dispensaries are not embraced by the state law. It should be noted that both of these communities that are opening up the discussion about medical marijuana are communities where the Act was passed by margins in excess of 70%.

However, this does not mean that the dispute over the law’s many uncertainties is close to being resolved. Recently, in an article that Abdo Law was quoted in, a Livingston Dispensary was raided. Additionally, the recent raid on Oakland County dispensaries raises serious questions about whether patients and caregivers need to be concerned about interference from the Feds. Moreover, a Dearborn judge recently decided that the entire MMMA was unconstitutional and denied to motion to dismiss a possession case.

So, on one hand we have communities beginning to regulate medical marijuana, and on the other there are communities ignoring the law outright. It is our position that more clarification is needed at the state level. Otherwise, well-intentioned patients and caregivers are going to be placed in jeopardy.
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