Police Procedure

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.”

Assault / Resist / Obstruct Police Officers DISMISSAL Macomb County

June 2, 2020 | Abdo Law Firm

Imaginary lines in space decide many of the rights and obligations of American life. These boundary lines have tremendous effects on our sense of self and to whom we feel connected. Far more than just emotional and psychological consequences flow from where we live and how we identify. (Read Democratic Education and Local School Governance.) In America, geography and identity determine one’s legal power and opportunity.

3 recently recorded incidents of unarmed black men being ridiculed or killed in America have surfaced online and sent communities across both coasts pleading for justice. The unfortunate stories of Ahmaud Arbery, Christian Cooper, and George Floyd during COVID provides powerful tools for Americans to reflect on our interconnectedness with fellow Americans from different backgrounds and geography.

The United States of America, a democracy founded on the equal dignity of every citizen[1] rejects an ancient view that legal power and opportunity hinges upon accidents like parentage or geography. This is due to the fact that deeply rooted in American heritage and values is our core belief in the American Dream, a happy way of living that can be achieved by anyone in the U.S. by working hard.[2]

Illegal Searches Part 3: The Home

November 6, 2012 | Abdo Law Firm

In this concluding portion of our series, we will discuss illegal searches as they relate to an individual’s home. The following will serve as a paradigm for exploring police searches of the home;

Were the police allowed to enter the home?
Were the police allowed to search the home?
What was the scope of the permissible search within the home?

The 4th Amendment provides the most safeguards to people in their homes. This stems from colonial America and is one of the foundational principles of the Bill of Rights. The 4th Amendment is premised on the idea that the home is one’s castle and the government cannot enter it unless there is good reason to do so. Searches of the home can be separated into two categories, searches with and without warrants. A search absent a warrant is presumptively unreasonable. Without a warrant, police can only search somebody’s home if there is exception to the warrant rule. However, this is one the situations in law where it is said the exception swallows the rule.

Searches WITH Warrants

This post will discuss two types of warrants, search warrants and arrest warrants. Arrest warrants will be discussed more as an exception to the warrant rule. A search warrant must be based on probable cause. Probable cause is presented via affidavit which must be signed by a judge or magistrate. Warrants can be defective on the grounds they are ‘stale‘, or based on old information. They can further be defective on the grounds of scope and specificity. There needs to be some guidance as to what can be seized in order to limit officers’ discretion. However, it can sometimes be difficult to challenge warrants because of the “good faith exception”, often preventing the suppression of evidence where an improper warrant was relied on in good faith.

Searches WITHOUT Warrants
The major recognized exceptions to the warrant requirements are;

1) Consent (standing),
2) Exigent circumstances,
3) Emergency aid,
4) Search incident to arrest,
5) And plain view.

The police may enter a home where there is consent that is freely given. However, from a legal standpoint one must have standing (or the authority) to give consent. Somebody must be more than just a temporary guest in order to give the police permission to search somebody’s home (an overnight guest, however, is sufficient). Where there is an immediate and pressing interest in preserving evidence, protecting police/the public, or preventing a suspect from escaping police can enter a home under the ‘exigent circumstances‘ doctrine. Where there is a reasonable belief that somebody is in need of medical attention police may enter a dwelling. However, police must have more than ‘speculation that someone inside side may have been injured’ in order to justify a warrantless intrusion under this doctrine. As stated above, where an arrest warrant has issued police may enter a home to effectuate that arrest without a separate warrant. This does not allow the police to enter a third party’s home and further they will be limited to only conducting a protective sweep within the home. Where a police officer is positioned somewhere he/she is legally allowed to be and can see evidence of a crime that officer can seize the item. The example that is often given is where police sees evidence of a crime through a window, absent an exception, they must still obtain a warrant to enter the home.
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Illegal Searches Part 2: Automobile Searches

October 30, 2012 | Abdo Law Firm

hot pursuit.jpg In the second part of our 3 part series on searches, this blog will discuss the rules governing automobile searches. The following needs to be considered when a motorist is pulled over and subsequently searched;

Was the stop a traffic stop or a stop based on suspicion of criminal activity?
Was any search justified?
Was the scope of the search justified?

As alluded to in our prior post, being in an automobile affords individuals much less 4th Amendment protection than being in their home. Police can search a car without a warrant under the ‘automobile exception’. Such searches must be supported by probable cause. According to case law, the general population doesn’t have a reasonable expectation of privacy within their automobile because it is operated upon public roadways and is highly regulated by the government. Thus, automobiles upon public roadways are subject to a much lower expectation of privacy than a private home – other drivers, and police officers, can see directly into the majority of traveling cars. It should also be noted warrantless searches may be conducted pursuant to a valid inventory search after the seizure of an automobile.

Police can stop a motorist either for violation of the motor vehicle code or based on the hunch of criminal activity. Where the officer actually observes a traffic violation they are allowed to make a stop. However, it is often a traffic stop that allows the police to make an arrest for a more serious crime. The police can run a background check during a traffic stop, if that check shows outstanding warrants the police may then arrest that individual and search their vehicle. Moreover, the police do not need a warrant in order to run a license check of a vehicle.

Police may expand the scope from a brief detention to issue a traffic ticket where there is a fair probability of contraband/evidence in the vehicle based on the totality of the circumstances. If a law enforcement official see’s, say for example a bloodied weapon, in plain sight during a traffic stop they may immediately seize that weapon. Another scenario, one that regularly plays out in this office, is where an officer smells alcohol or marijuana during a traffic stop. The smell of marijuana justifies a search of the motor vehicle. Similarly the odor of intoxicants allows the police to conduct roadside sobriety tests.

Where there is no traffic violation, law enforcement may make an investigative stop where they believe criminal activity is taking place. Where there is probable cause that a crime is being committed police may stop an automobile without a warrant (for example where a car is described as leaving the scene of a recently committed crime). Probable cause can be premised on as little as an anonymous tip. Depending what the probable cause is for (meaning a stolen vehicle versus a bag of drugs) will dictate the initial scope of the permissible search. Practically speaking, the police will likely find a way to search the entire car through one of the warrant exceptions. Further, probable cause will typically give pretty wide latitude in terms of what portions of the car can be searched absent a warrant. Police can, for example, open a container if they have reason to believe there is evidence of a crime in that container. However, the search needs to be somewhat logical. That’s to say that police likely do not have the authority to search a purse if they stop an automobile under suspicion that it’s harboring illegal immigrants.

Beneath is some case law regarding automobile searches.

– The police may not search an automobile if the stop was solely for the purpose of seeing the motorist’s license.
– The police may search a car incident to a custodial arrest.
– The police may not search a car where a ticket is issued for a traffic offense provided that’s the reason the car was stopped.
– Police may search a car made at the end of a hot pursuit of a crime scene.
– Police may search a car believed to be stolen.
– The police may allow a dog to sniff an automobile during a legitimate traffic stop.
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Illegal Searches Part 1 of 3: General Rules and Searches of a Person

October 11, 2012 | Abdo Law Firm

Abdo Law Police Patdown.jpg

Oftentimes clients ask the following questions;

When the police searched me, was their search valid?
Were the police allowed to search me?
Did the police have the authority to search me?

Answer: It depends, this three part blog series will explore what types of searches are and are not valid.

The 4th Amendment of the U.S. Constitution states that no one should be subjected to an unreasonable search. Michigan’s standard for searches is not higher than that of the Federal Government.

The general rule is that a search without a valid warrant is unreasonable. Where there is no warrant it must be demonstrated that there was both probable cause and a valid exception.

Beneath are the recognized scenarios where law enforcement may conduct a warrantless search;

1) When incident to a lawful arrest,
2) Under the “plain view doctrine”,
3) Based on voluntary consent,
4) Pursuant to a custodial inventory search,
5) Pursuant to statute,
6) When presented with exigent circumstances,
7) Automobile searches,
8) And stop and frisk searches.

The Constitution affords the most protection to homes. Much less protection is extended to motorists and individuals. This post is devoted to what is required to search an individual without a warrant.

Terry Stops

Pursuant to the Terry v Ohio U.S. Supreme Court decision, a police officer has the authority to stop a suspect when he/she has reasonable suspicion that criminal activity is occurring. Basically, the officer must be able to describe the situation and explain his actions based upon his experience as a police officer. This pertains only to whether or not an officer can stop an individual who is walking down the street.

Whether or not the officer can search the individual is dependent upon the circumstances of the encounter. Although the person has been stopped based upon the officer’s reasonable suspicion, the officer is limited in how he/she can search the individual’s person. When the officer has reasonable suspicion that the person is armed and presently dangerous or is engaging in criminal conduct, they are entitled to search the individual. The frisk, as it’s known, is limited to a search for weapons by patting down only the outer clothing of the person. During this search if an item is immediately recognized as contraband it may be seized pursuant to the “plain feel” exception. However, an officer cannot, for example, manipulate an objected suspected to be contraband through the clothes or remove that object in order to determine that it is indeed contraband.

Both the search and the stop must be reasonable. This is determined through an objective test, which means that if the behavior meets a certain threshold, it’s reasonable. If not, the police behavior is unreasonable.

Courts have held the following –

1) It is not a violation of the Fourth Amendment for a cop to stop and question an individual on the street.
2) While a person’s mere presence in a high crime area may not be enough to warrant a frisk, running from such an area is.
3) An officer’s personal observation of criminal activity is not needed to form reasonable suspicion, it can be based on third party information.
4) Police officers cannot manipulate someone’s carry-on luggage in order to determine its contents, whereas a canine sniff (properly limited in scope) is not a “search” as defined by law.
5) Police may question persons on public transportation.
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