Criminal Defense Q&A

When Should I Hire A Defense Attorney?

When you receive notification that you are being accused of a crime, your first call should be to a criminal defense attorney. Time is critical in criminal defense cases, and only a criminal defense attorney has the skills and knowledge you need to build a strong defense. Criminal defense attorney Toby White understands the time-critical nature of these cases, as well as the strong fear they bring. He is ready to put his legal knowledge to work for you to build a solid defense, no matter how serious your charges may be.

Attorney Toby White knows how to help is clients feel safe and confident. He understands the immense stress that these cases brings, and wants to help walk clients through the days ahead to a successful conclusion of their case.

Can I Get Out on Bond?

Hilary M. Barnard (9.2018)

It’s always a good idea to talk with your lawyer about bond options if you’re in jail. Michigan Court Rule 6.106 addresses the factors to be considered. There are a number of factors that the court is supposed to review.  Some of the biggest concerns of the court are the seriousness of the offense, prior criminal history, the risk of the accused leaving the jurisdiction, and the risk to the public from the accused person.

The court may outright deny bond under certain circumstances. Talk with a criminal defense attorney to see what your options may be.

Can Police Search My Car if They Smell Marijuana?

Hilary M. Barnard (8.2018)

Maybe, but smell alone may not cut it. In the 34th Judicial Circuit a judge thought it inappropriate that marihuana smell alone is sufficient to show unlawful activity since persons can possess medical marihuana.

Since the introduction of the Michigan Medical Marihuana Act of 2008 a case that directly addresses the smell issue, People v. Zaid(2015), involved the defendant informing law enforcement that he possessed more than allowed. The case was unpublished and has since been vacated. This means the case was not binding when the opinion was written, and further that it is not current law.

In Zaid,the Court’s decision is somewhat confusing as to marihuana smell being sufficient as it states, “we make no ruling on this matter, and this opinion is not to be construed as holding that the odor of marijuana, in and of itself, cannot serve as probable cause when a person holds a valid marijuana registration card; we merely find it unnecessary to answer that question.” The court further clarified in a footnote that the did not answer the question because the defendant had already admitted to having an unlawful amount of marihuana in the vehicle making the smell a nonissue.

It is important, if you are a MMMA card carrier that you adhere to the requirements and rules under that act, if not you may find yourself in a tough situation. If you question whether a search of your vehicle was valid, meet with a defense lawyer and see what your options are.

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Will Michigan Follow Suit?—Marijuana Crime Expungement

Hilary M. Barnard (10.2.2018)

California has introduced a new assembly bill that may offer persons with marijuana convictions to have their records expunged. (Assembly Bill 1793). This  isn’t the first time a state looked to retroactively remove a marijuana conviction past. (Oregon). California’s plan, however would be the first time the removal is automated. (USA Today Article).

Michigan has a ballot proposal scheduled for this November to allow personal possession and use of marijuana by persons aged 21 and older. If it passes, it will be an interesting time to see if Michigan follows suit of other states and how long the process may take.


7th Circuit—Smart Electric Meter Reads Are Reasonable Searches

Hilary M. Barnard (8.22.2018)

A recent decision from the Court of Appeals for the 7th Circuit (the states of Illinois, Indiana, and Wisconsin) on August 16, 2018 determined that collection of data from smart meters constitutes a search and that this particular search is reasonable. See Naperville Smart Meter Awareness v. City of Naperville (7th Cir. 2018). This decision marks an interesting decision as technology continues to develop.

Under the Fourth Amendment, persons are protected against unreasonable searches and seizures. Further that without probable cause supported by oath or affirmation and particularity as to the place to be searched, persons and/or things to be seized no warrant shall issue.

This case examined smart meters for homes that were used by a locality’s public utility. As in, pretty much every home in the jurisdiction had to use the service. The smart meters pull data on a regular basis, the court rightly concluded that this is a search. The curious decision is that the court also found the search reasonable. In this case, the data was not available to law enforcement without warrant or court order. This last caveat is likely why the court found this type of data collection reasonable—to get the data law enforcement would need a warrant.

Why is this significant? As technology advances, more and more data and metadata are collected from people without their explicit, specific consent. (Think…how often do you read terms and conditions of use?) Data from things like internet data and phone location is a lot easier to come by in 2018 than it was in 2008, 1998, and so on. What can you learn from this type of data? —A lot. Where you go, when you’re there, when your house is empty, what appliances you use, and how often you use them. It’s a lot of information that the right people can use to pin point your life patterns. It sounds a bit like a conspiracy theory, and really it isn’t. The trouble comes when the wrong hands find your data.

For strong believers in 4th Amendment protections, this type of decision can start to lead down a slippery slope. Judge Kanne, who authored the opinion was very astute to include a caution—“[T]hat our holding depends on the particular circumstances of this case. Were a city to collect the data at shorter intervals, our conclusion could change. Likewise, our conclusion might change if the data was more easily accessible to law enforcement or other city officials outside the utility.” This is good news for citizen’s protections, but the reality of this type of data’s availability is still becoming increasingly prevalent.


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