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Defenses to Michigan Drug Charges

Drug charges in Michigan are serious matters. If you or a family member has been charged, the situation may seem overwhelming and hopeless. Even being investigated for a drug charge can be scary, especially when evidence or testimony is ambiguous but is being interpreted as though you’re guilty. You may feel like there’s nothing you can do and that it’s a foregone conclusion that you’ll end up in jail or prison, or at least that your future is now uncertain, but that isn’t necessarily true.

It’s true that penalties for Michigan drug charges can be harsh. If you’re convicted of a Michigan drug offense, you may face:

  • A lengthy jail or prison sentence
  • Expensive fines
  • Loss of your driver’s license
  • Loss of your professional license to work in law, medicine, teaching, pharmacy, nursing, or another licensed profession
  • Loss of federal financial aid to pay for college
  • Loss of your immigration visa or work permit, denial of a citizenship application, and deportation
  • Loss of custody of your children

However, as frightening and stressful as it can be to face drug charges, you may have options. An experienced Detroit drug defense lawyer may be able to look at the evidence and circumstances in your case and see ways to fight your charge and protect your future.

This page explores some common defense strategies in Michigan drug cases, but every case is unique and there may be other defense strategies that a good Michigan drug lawyer can use on your behalf. How your lawyer tackles your case will depend on the specific evidence and testimony being used against you, whether there are any issues with the investigative process in your case, and the prosecutors and judges involved in your case.

To gain an understanding of the best defense possibilities in your case, it’s recommended that you consult with a qualified Michigan defense lawyer. If your case is pending, an experienced attorney should be able to offer insight and explain what you can expect from the criminal court process.

Possession Defenses & How a Michigan Drug Lawyer Can Help

Drug possession is one of the most common drug-related charges seen in Michigan courts. In a possession case, a prosecutor must prove beyond a reasonable doubt that you:

  • Had a substance in your possession
  • The substance was an illegal controlled substance
  • You knew you had the substance in your possession
  • You intended to possess the substance
  • You knew what the substance was

A prosecutor must prove every single one of those things in order to convict you. If your defense lawyer can knock down any one of those arguments, you may stand a chance at getting an acquittal from a jury, or at convincing the prosecutor or judge to reduce your charge or impose reduced penalties.

There are essentially two ways that you can be considered to be in possession of a controlled substance.

  • Actual Possession — This is when you have the drugs on your person, which could include holding a joint in your hand, or having a packet of heroin in your pocket or in a bag you’re carrying.
  • Constructive Possession — This is a slightly more vague form of possession, and means that you don’t have the drugs on your person but have them within your “dominion and control.” In essence, if you have the ability to take actual possession of the drugs, you may be considered to have constructive possession. Constructive possession can include having drugs stashed in your apartment or your vehicle, or even giving them to another person to hold for you as long as they belong to you and you can take them back at any time, i.e., you have dominion and control.

Some ways that a Michigan drug lawyer might attack a prosecutor’s arguments in a possession case include:

  • Unwitting Possession — Your lawyer may argue that you didn’t know the substance was in your possession. For example, if a bag of cocaine was found in your backpack, but it was slipped there without your knowledge or consent by someone else who was trying to get rid of it so they wouldn’t get caught in possession, your lawyer may argue that your possession was unwitting and that you shouldn’t be found guilty of the charge. This type of defense might be used in a case involving either actual or constructive possession.
  • Lack of Possession — When a drug charge is based on constructive possession, your lawyer may argue that you lacked possession if you lacked the necessary dominion and control over the drugs. For example, if drugs were found in a desk in your apartment, but you share your apartment with a roommate and didn’t have access to the locked desk drawer, your lawyer may argue that you had no dominion or control over the drugs and therefore lacked possession and should be found not guilty.
  • Misidentification — It may be that the substance in your possession wasn’t an illegal controlled substance at all and that investigators misidentified the substance, or a test returned a false positive or inaccurate result. If the substance wasn’t a controlled substance, a synthetic drug, or an imitation drug, then your lawyer can argue that the prosecutor hasn’t met the burden of proof for the offense.

Illegal Stops

Cases involving drug possession or drug trafficking often are based on traffic stops. A police officer or state trooper pulls someone over and suspects there may be drugs in the car, performs a search, finds drugs, and that results in a criminal charge. However, a police officer has to have a reasonable suspicion that illegal activity may have occurred in order to legally stop you.

Officers aren’t supposed to just pull you over at random, and they have to be able to articulate or explain the reason for the stop in a court. That suspicion doesn’t necessarily have to involve drugs. For example, an officer could pull you over for speeding or for having an expired license plate and then perform the search that leads to the drug charge. But there has to be a valid reason for the stop — and a “gut feeling” isn’t enough. There has to be some kind of observation that leads to reasonable suspicion for the stop, such as observing you speeding or spotting that your license plate is expired.

When the officer had no reasonable suspicion for the stop, then your lawyer may be able to argue that any evidence found during the stop, such as through the search of your vehicle, should be suppressed and not used against you in court. When evidence important to the prosecution’s case is suppressed, that may lead to a dismissal, an acquittal, or a reduction in the charge or penalties.

Warrantless Searches

Most drug cases involve some kind of search, whether it’s of a home, vehicle, business, or your person. Investigators use searches to find drugs, raw materials used to make drugs, paraphernalia or equipment, or money used in drug transactions. And in most cases, when investigators want to search you or your property, they have to get a search warrant.

Under the Fourth Amendment, you have the right to be free from unreasonable searches and seizures. It’s the Fourth Amendment that requires investigators to get a search warrant when they want to look for evidence of a crime, and that requires investigators to demonstrate probable cause that they’ll find evidence linked to criminal activity before a search warrant can be granted.

When a search is conducted without a warrant, a legal doctrine called the “Exclusionary Rule” says that your lawyer can argue to keep any evidence found during the warrantless search from being used against you in court. Your lawyer also may be able to make that argument when officers had a search warrant, but the warrant doesn’t contain all of the necessary information or there wasn’t actually probable cause to issue the warrant.

It’s important to understand that there are circumstances when police can conduct a search without first getting a warrant. A couple of those circumstances are:

  • You consented to the search
  • The evidence was out in the open, such as a packet of drugs sitting in plain view on the passenger seat of your car
  • You were searched incident to an arrest

It’s also important to understand that when police ask to search your car, your home, or your person that you’re allowed to refuse. In that case, they’re supposed to get a warrant if they have probable cause for the search.

Illegal Surveillance or Wiretapping

The Fourth Amendment also protects you from the illegal use of surveillance or wiretapping. The basis for the protection against illegal searches and seizures in the Fourth Amendment is the idea that you have a right to a certain amount of privacy from government intrusion, and a search is an intrusion into your privacy. Likewise, surveillance or wiretapping are an intrusion and police are supposed to have a warrant before using these methods in an investigation.

If you ever watched the TV show The Wire, the police in the first season used wiretapping to investigate a Baltimore drug ring, but one of the first scenes in the show involved a detective convincing a judge to issue a warrant, and some of the plot involved the investigators navigating the restrictions and boundaries of the wiretapping warrant, such as only tapping phones listed in the warrant and having to document that the conversations they listened to were relevant to their investigation.

When police use wiretapping or surveillance without first obtaining a warrant, your lawyer may be able to get the evidence suppressed so that it can’t be used against you in court, and that may help you to fight your drug charge.

Canine Searches

Police dogs are another tool used by drug investigators to literally sniff out evidence of drug crimes. However, as with other tools, an officer has to have a reasonable suspicion of criminal activity before conducting a search with a drug-sniffing dog. K9 units shouldn’t be used at random, or for evidence fishing expeditions.

If your case is based on a K9 search, your lawyer may be able to challenge whether the officer who brought in the dog had reasonable suspicion for the search. If not, the evidence obtained in the search may be suppressed.

Illegal Seizures or Arrests

Similar to when they want to search you, police need a valid reason to arrest you and can’t do it based on a gut feeling or at random. They need a reasonable suspicion that you’ve committed a crime in order to make an arrest. Police also are supposed to follow certain procedures when they arrest you, such as administering your Miranda rights — the rights you hear on TV shows that start with “You have the right to remain silent.”

When police have no reasonable suspicion to arrest you, or fail to administer your Miranda rights, your Michigan drug lawyer may be able to challenge the legality of the arrest. It’s possible that your lawyer can argue that statements you made after you were arrested or evidence obtained if you were searched incident to an arrest should be suppressed. You can learn more about how Davis Law Group PLLC approaches search and seizure motions here.

Facing a drug charge? Contact us today.

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Attorney Maurice Davis
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