Legal Question in Criminal Law in Michigan

Was arrested for possession of cocaine, first offense looking for advice on court pointed lawyer or hiring one, was fishing with someone else half mile back in woods dnr walked up, accused us of suspicious activities, attempted to search my box, I told him I didn't consent to search, said he didn't need permission, at this point he didn't have probable cause, never searched me then, eventually we walked back to the parking lot, he had nothing on us except that the someone I was with had suspend license he drove, unknown to me. Officer asked me if I could operate vehicle, I said yes he then searched me and found controlled substance, is agreeing to operate motor vehicle in Michigan probable cause for search? In need of advice thanks. I never consented to search.


Asked on 9/13/16, 5:20 pm

1 Answer from Attorneys

Neil O'Brien Eaton County Special Assistant Prosecuting Attorney

I do not have advice for you on hiring an attorney versus seeking a court-appointed attorney ... except to say that if you can afford to hire your own attorney then the court should not provide you with a publicly-funded attorney. You should do your own homework on local criminal defense attorneys on how much they would charge. As for your legal question, the encounter "in the woods" is largely irrelevant because you said that no search occurred there". Although it may give some context to the officer being so insistent on searching you at the car. In order for the officer to legally search you at the car, (1) he had to have your consent to search your clothes, etc. [which I assume you did not give], or (2) the officer had to have a credibly articulable concern that you had a weapon on you in order to do a 'safety pat-down' of your clothes. No one was under arrest, so this was not a warrantless search incident to that arrest. So, of the likely exceptions for a warrantless search, the "#2 option" above would have to be it. I'm dubious that the officer has that articulable concern for his safety, but his report (and a body cam, if he had one?) may tell a different story. Police cannot do "general pat-downs" (i.e., pat everyone down that they encounter because they fear their safety with every single person). But even if the officer was justified in patting you down for weapons, the officer can only retrieve from your pockets, etc. items that by their plain feel might be a weapon, or might be other contraband. (If you were being searched incident to having been placed under arrest, then police could go into all your pockets, the containers inside your pockets, etc. (a more intrusive invasion of your privacy because you were under arrest, as opposed to you simply being detained and some kind of pat-down search occurring to ensure the officer's safety). We don't know from your facts where the cocaine was found on your body, how it was packaged, etc. Sometimes cocaine is packaged in innocuous folded pieces of paper (bindles), which would be very hard to detect on a pat-down. It would be interesting to know what was reported in the officer's paperwork, plus what might have been recorded on a body cam or in-dash video. You sound like you think you know about search and seizure law from how you phrased some of your encounter with the officer, but don't be foolish enough to trust your own knowledge and forego having a licensed attorney (hired or appointed) review all the case facts and determine if a motion to quash the search can be filed. Let the lawyer be the lawyer (or, to paraphrase the popular meme: "Please don't confuse your LawGuru query with my Law Degree").

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Answered on 9/14/16, 6:43 am


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