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Even though this post is old, there are important lessons for the kids to learn from your buddy’s situation. The discussion that follow applies Michigan and related federal law as your buddy was pulled over in Michigan. This is not legal advice.
To clear something very important up at the outset, your buddy was not charged with possession of 25 grams of cocaine. He was charged with possession of 25 grams or less of a schedule 2 controlled substance, to wit: cocaine - under Michigan law. Mich. Comp. Laws Ann. § 333.7403(1), (2)(a)(v) (West); Mich. Comp. Laws Ann. § 333.7214(a)(iv). This means that under Michigan law, whether your buddy possessed .001 grams of cocaine or 25 grams of cocaine, he technically faces criminal exposure of up to 4 years imprisonment and a $25,000 fine. Mich. Comp. Laws Ann. § 333.7403(2)(a)(v). Because it sounds like your buddy had a bag with cocaine residue, the charge is correct, though it appears to be the most serious readily provable offense that could have been charged.
Regarding your buddy’s exposure, anywhere in the United States a police officer needs reasonable suspicion to conduct a traffic stop as this is a seizure within the meaning of the Fourth Amendment and Article 1, Section 11 of the Michigan Constitution. See generally Terry v. Ohio, 392 U.S. 1, see also People v. Hyde, 775 N.W.2d 833, 838 (Mich. Ct. App. 2009) (“In order to effectuate a valid traffic stop, a police officer must have an articulable and reasonable suspicion that a vehicle or one of its occupants is subject to seizure for a violation of law.”). “The reasonableness of a search or seizure depends on whether the officer’s action was justified at its inception, and whether it was reasonably related in scope to the circumstances which justified the interference in the first place.” Hyde, 775 N.W.2d at 839.
In order to search a vehicle as part of a traffic stop, the Fourth Amendment and Article 1, Section 11 requires the police officer to have probable cause that a crime has been committed or is being committed. People v. Kazmierczak, 461 N.W.2d 667 (Mich. 2000). In order to show a vehicle search passes constitutional scrutiny, the police officer must show that the officer had a warrant or the conduct fell into one of the specific exceptions to the warrant requirement such as: (1) searches incident to arrest; (2) automobile searches and seizures; (3) plain view seizure; (4) consent; (5) stop and frisk; (6) exigent circumstances. People v. Avery, 2019 WL 1302207 at 2 (Mich. Ct. App. March 21, 2019). In Michigan, where a search or seizure is conducted in violation of law, the fruits (evidence) of that search or seizure may not be used in the government’s case in chief against a defendant. See People v. Goldston, 682 N.W.2d 479, 483 (Mich. 2004).
You don’t provide any facts about the circumstances of the stop, but the first thing to look at is whether the stop was valid at its inception, i.e., did your buddy violate any traffic law, even to the slightest extent, resulting in the stop? If not, he could argue, he could argue the evidence seized should be suppressed based on an invalid stop. Challenging the stop at a suppression hearing will be an uphill battle because it will come down to the credibility of the stopping officer’s testimony that your buddy committed a traffic violation. However, his attorney should make documented requests for Giglio information - that is, any information that tends to impeach the character or testimony of the testifying officer. This could include investigations into the stopping officer for administrative violations, a history of making bad arrests, using excessive force, conducting unlawful searches, etc. If there is any Giglio out there, it may help the judge to reject the stopping officer’s testimony regarding the basis of the stop as lacking credibility.
If the stop is valid, the next thing to look at is whether the search of your buddy’s vehicle was lawful. Since this was a traffic stop, I assume there was no warrant. Therefore, the lawfulness of the search comes down to whether a warrant exception applies. Your buddy wasn’t arrested, so there was no search incident to arrest. You describe no urgency, so exigent circumstances does not apply. And stop and frisk generally does not apply to traffic stops.
This leaves us with consent, plain view, and probable cause automobile searches. The vast majority of traffic stop automobile drug seizures stem from the driver consenting to the search. So I ask, did your buddy consent to the search? If he did, the search was lawful. Always be respectful to law enforcement (so you don’t get shot), but never consent to a search, whether it be a hand search by a human or a K-9 sniff. You do not have to consent to searches, no matter what the law enforcement officer says to you.
If your buddy, did not consent, then was either the 5HTP or bag with cocaine residue in plain view to the stopping officer? Because if it was, that is, the officer could see either of these items or other suspected contraband like a weed roach, etc., the officer likely had authority to conduct a limited search based on what he saw.
If there was no consent or plain view exception at play, then I assume the officer conducted a probable cause search. The law recognizes a diminished expectation of privacy in an automobile. Avery, 2019 WL 13002207 at 2. As a result, “an automobile may be searched without a warrant . . . provided there is probable cause to believe that the car contains articles that the officers are entitled to seize. Whether probable cause exists depends on the information known to the officers at the time of the search.” People v. Garvin, 597 N.W.2d 194, 200 (Mich. Ct. App. 1999). Specifically, “[a] finding of probable cause requires a substantial basis for concluding that a search would uncover evidence of wrongdoing. There must be a fair probability that contraband or evidence of a crime will be found.” Id. (internal quotations marks and citations omitted).
As you can see, there is a low bar for justifying a probable cause automobile search. But I’m going to assume the fact leading to the stop and justifying the search went like this police observed: (1) a vehicle with non-Michigan license plates “swerving in its lane” and touching outside of a solid white line; the vehicle erratically speeding up and slowing down between 5 and 10 mph of the posted speed limit; (3) as the driver drove erratically, the driver kept looking at the officer via rearview and side mirrors. As a result, the officer conducted a stop for speeding and driving outside the white line. When the officer approached the vehicle, the officer observed: (1) the driver clutching the steering wheel with blood-shot or dilated eyes, refusing to make eye contact, and speaking in a hyperventilated manner, indicating extreme nervousness; the smell of marijuana and/or alcohol (I base this on the fact your buddy was coming from a rave); and (3) the passenger, with shaking hands, acting in a similarly nervous manner.
With an additional fact like: (1) there was ash or residue of a green leafy substance in a cup holder; (2) a K-9 alerted to the vehicle during an open-air sniff; (3) there were one or more baggies or drug paraphernalia observable in the passenger compartment; or (4) one of the occupants appeared to be intoxicated, a probable cause automobile search was probably justified. This is all to say that your buddy’s probability of success at suppressing the evidence seized from the search if highly fact-specific. But ensuring all Giglio information is disclosed to him for impeachment purposes in preparation for the suppression hearing is something he can do regardless of the merits of his suppression arguments.
If your buddy has no suppression argument, he needs to consider the strong likelihood of conviction for felony possession of 25 grams or less of cocaine based on the information you have provided. In order to convict your buddy for felony possession of 25 grams or less of cocaine the state would need to establish the following elements beyond a reasonable doubt: (1) the defendant knowingly or intentionally possessed a controlled substance; (2) the substance was in fact cocaine; and (3) the amount of cocaine possessed was 25 grams or less. Here, it appears the police officer seized a bag containing residue of a white powdery substance, which later tested positive for the presence of a mixture and substance containing a detectable amount of cocaine. Because the bag was effectively empty and contained only residue, that cocaine had a weight of 25 grams or less. Because the bag of cocaine residue was likely seized from the passenger compartment of the vehicle and within reach and general control, of your buddy, knowledge and possession can likely be inferred from the circumstances. As a result, your buddy’s conviction at trial is virtually certain; and if your buddy takes the case to trial, he will likely be subject to a harsher punishment than had he pled guilty with a plea agreement.
So given that your buddy is likely guilty of the felony (a serious conviction that will lead to his loss of important civil rights), he has very important decisions to make and few options. All of his options begin with negotiating with the prosecutor. There are generally two ways a defendant can go about negotiating with the government for a more favorable deal or non-prosecution: (1) providing the government with mitigation information, such as that the defendant is a student or employed with no prior criminal history and that he coaches a youth soccer team and is active in his church; and (2) cooperation, such as providing information that substantially assists the government in another investigation.
Since this isn’t a trafficking case, I’m not going to get into how to approach cooperating with the government (a much more complex subject) because I highly doubt your buddy has any cards he could play, even if he wanted to, that would be worth anything to even local law enforcement. With that in mind, he should go down the mitigation road and get his lawyer to provide a detailed mitigation letter and packet of supporting materials, which could include letters written by friends and family in support of your buddy and his character. If he does that in a simple possession case like, this I’m pretty confident, he’ll at least get a misdemeanor plea offer, if not probation or pretrial diversion, so long as he doesn’t have extensive criminal history.
Morals of this poor raver’s story are if you’re driving with personal use amounts of dope in your car: (1) stay calm and drive normally when you’re being followed by law enforcement; (2) again, stay calm during the stop and be respectful to law enforcement but do not consent to searches (periodically ask if you are free to leave); and (3) if you have to negotiate with the government, go to the prosecutor with mitigation. Follow these rules, and you will have done everything you can protect yourself during a traffic stop in Michigan after Electric Forest. |
