Drug Charges


Drug possession. Understand your rights in Michigan.

Generally speaking, in order to understand your rights in a drug case, you should understand your rights in criminal cases, generally. By definition, drug cases involve the use or possession of a substance, an illegal drug. That means that the police have some evidence that you used or possessed the illegal drug in question. In turn, that begs the issue of whether the police obtained that evidence lawfully. In turn, that will depend on: 1) the lawfulness of “The Stop”, meaning the stop by police; 2) the lawfulness of any arrest, search or seizure of evidence (which entails a review of whether there was a warrant for the arrest/seizure, or whether the arrest/seizure falls within one of the recognized exceptions.

Aside from these general principles of criminal procedure, there are some new changes you no doubt heard about, the first dealing with the partial legalization of marijuana, and the other dealing with expungements and the new “Clean Slate” legislation. I will discuss each below, in a bit more detail.

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“HYTA is open to young people, between 17-24 years of age, as long as the charged crime does not involve a felony, major controlled substance offense, and most offenses under the Sex Offenders Registration Act.

Interestingly, it is also not available for traffic offenses, presumably to induce younger people to drive more safely.

Increasingly, I am having clients CALLING ME, about their recent drug possession arrests, and ASKING ME about “7411”.  I don’t have to tell them.  It’s out there.

So, what is “7411”, and why is that a good, or a bad option?

“7411”, refers to probation for drug arrests,   under  MCLA 333.7411, under which a plea or finding of guilt is deferred, subject to probationary terms and for a prescribed period of time, as outlined by the judge.  “Upon fulfillment of the terms and conditions, the court SHALL discharge the individual and dismiss the proceedings. Discharge and dismissal under this section SHALL be without adjudication of guilt and, except as otherwise provided by law, is not a conviction for purposes of this section or for purposes of disqualifications or disabilities imposed by law..” 

I have added emphasis to the word, “SHALL”, because it makes mandatory the dismissal of the charges, and the effect is to NOT be an adjudication of guilt, which can be quite helpful down the road.  Obviously, the failure to comply with the probationary terms, results in imposition of sentence.

There are exceptions, to this apparent generosity.  Law enforcement and the courts still have access to the nonpublic record, even if universities, e.g., and MOST potential employers do not.  If you yourself are contemplating a career in law enforcement, or if child protective services has a reason to look at your record, they will see this nonpublic information.

So, how could “7411” ever be a bad option?

Under the terms of the statute, it can only be used once in a lifetime.  Everyone is genuine in saying, “this will never happen to me again, I promise!”  However, by the same token, none of us can predict the future.  Therefore, it is always best, if at all possible, to seek probation elsewhere, such as “HYTA” (for “Holmes Youthful Trainee Act”), and MCLA §771.1, also referred to as “771”.

HYTA is open to young people, between 17-24 years of age, as long as the charged crime does not involve a felony, major controlled substance offense, and most offenses under the Sex Offenders Registration Act.  Interestingly, it is also not available for traffic offenses, presumably to induce younger people to drive more safely. 

“771” seems to offer the greatest “safe harbor”.  As long as “…the court determines that the defendant is not likely again to engage in an offensive or criminal course of conduct and that the public good does not require that the defendant suffer the penalty imposed by law, the court may place the defendant on probation under the charge and supervision of a probation officer.”  The statute is geared toward giving “…the defendant an opportunity to prove to the court his or her eligibility for probation or other leniency compatible with the ends of justice and the defendant’s rehabilitation (e.g., such as participation in a drug treatment court, etc)…” The court retains jurisdiction to impose sentence at any time during the one year maximum time of probation, under this statute.  There are certain mandatory probation fees, that will be imposed, based on the defendant’s projected monthly income.

 The term, “probable cause”, comes right out of the words of the 4th Amendment to our US Constitution, which states as follows:

“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

The police do not need “probable cause” to stop you.  All they need is “reasonable suspicion”.  What is the difference? Frankly, the only difference is one of degree.  An officer’s suspicion might be reasonable, if the facts and circumstances are such that he/she believes that a crime was committed (or that you might possess a weapon that poses a threat to them).  Under those circumstances, not only can an officer stop you, but he/she can frisk you, as well.  In this case, Terry v Ohio, the US Supreme Court held that a pat-down can be done, pursuant to an officer’s “reasonable suspicion”, and that a weapon or other contraband can be seized without violating the 4th Amendment. 

OK, so the 4th Amendment is what sets forth the standard of probable cause, and the requirements of warrants, and the right to be secure from “unreasonable searches and seizures”.  So what then, is “probable cause”? 

It is not satisfying to say that it is more than mere “reasonable suspicion”, but that is as good as any.  In Brinegar v US, our US Supreme Court defined probable causes as “where the facts and circumstances within the police officers’ knowledge, and of which they have reasonably trustworthy information, are sufficient in themselves to warrant a belief by a person of reasonable caution, that a crime is being committed.” 

This somewhat squishy standard became even squishier, 34 years later, when the Supreme Court held in Illinois v Gates lowered the threshold of probable cause, by ruling that a “substantial chance” or even a “fair probability” of criminal activity could establish probable cause; it need not even be a better than even chance.  

Over the years, particularly since the 1970’s and up to the present day, the trend has been for the Courts to expand the definition of “reasonable suspicion” and to liberalize (i.e., for the benefit of police officers) the definition of “probable cause”, to allow ever greater intrusions into what had previously been areas of personal privacy.

What Is Legal

In 2018, Michigan voters legalized marijuana, in the “Michigan Regulation & Taxation of Marihuana Act”, or MRTMA.  Yes, the Michigan Legislature really spells “marijuana” as “marihuana”; throughout the statute books, as a matter of fact.

In any event, marijuana is legal, to the extent that Michigan law allows it, but you should know that marijuana is still illegal under federal law.  You should also know, if you don’t already, that airports are regulated heavily by the federal government, and your possession of marijuana in an airport, may subject you to federal criminal penalties, even if the airport is located in Michigan.

In Michigan, under MCLA §333.27955(1), possession of up to 2.5 ounces of marijuana outside one’s home, by someone over the age of 21, is legal; in-home possession is legal up to 10 ounces.  MCLA §333.27954(1)(i) makes it illegal to possess more than 2.5 ounces of marijuana at home, unless the amount is excess of 2.5 ounces is kept under lock/key, or other security devices.  Finally, the new Michigan marijuana law allows up to 12 plants to be cultivated, within one’s home at any one time.

Transfer of marijuana from one person to another, has also been made legal by the new law, as long as:

  1. There is no more than 2.5 ounces involved;
  2. There is no form of renumeration, or compensation made for the transfer
  3. The transfer is not made to a person under the age of 21; and
  4. The transfer of marijuana is not advertised or promoted to the public.

MCLA §333.27955(2), makes use (as opposed to possession) legal, again, for persons over the age of 21, and subject to the quantity limitations.

The specific language in Section 1 and Section 2 of the statute is interesting, in that it indicates explicitly, that otherwise lawful use or possession:

  • “….is not unlawful..
  • Is not an offense
  • Is not grounds for seizing or forfeiting property
  • Is not grounds for arrest, prosecution, or penalty in any manner, and
  • Is not grounds to deny any other right or privilege…”

This will make for interesting case law and litigation, going forward, in the event say, a police agency tries to use otherwise lawful possession of marijuana, as probable cause for arrest, prosecution, search or seizure.  As well, the broad language indicating that otherwise lawful possession, “is not grounds to deny any other right or privilege…”, may well find application in other areas, as long as they involve a “right or privilege”.

MCLA §333.27954, the prohibitive statute in the MRTMA, indicates that it is not to be construed/understood to limit the rights created in the “Michigan Medical Marihuana Act”, MCLA §333.26421, (which goes to MCLA §333.26430) other laws allowing for the regulation of marihuana for medical use; it also does not apply to the “Medical Marihuana Facilities Licensing Act” or the related laws, permitting the licensing of medical marijuana facilities.  In plain English, medical marijuana facilities are subject to different rules.

While possession and use of marijuana are made legal by MCLA §333.27955, nothing in that law requires an employer to permit employees to show up to the job, under the influence of marijuana.  Employers are free to discipline employees for use of marijuana, in violation of workplace drug policies, and indeed, they are free to fire, or to refrain from hiring someone for marijuana use, no matter how legal it may now be to use/possess marijuana.

Finally, the possession of marijuana, made legal by the MRTMA, shall no longer be grounds for denial of custody or visitation, unless that “person’s behavior is such that it creates an unreasonable danger to the minor, that can be clearly articulated and substantiated.”  Therefore, the mere possession of 10 ounces or less, within the home, should not be enough, by itself, to deny someone custody or visitation with their children.  That may be more the purview of a family law specialist, and we will gladly help you find someone who can definitively answer these questions.

The MRTMA has explicit provisions for the regulation and taxation of persons who either want to be involved in the business of selling legal marijuana, or want to legally transfer it to other persons.  For now, this website and The Frank Law Firm, PC do not handle marijuana business issues, but we can certainly help direct you to qualified marijuana business counsel, if that is what you need.

Any further questions?  Give Jon Frank a call at (586) 727-1900, or email at jon@jonfranklaw.com


Can a criminal history, going back far enough in time, be wiped out? Many times, folks lived life differently in the past, than they do now; the need to work, support a family, pursue educational opportunities, etc, require that a criminal history be “buried” as much as the law will allow.  Can this be done?

Traditional Michigan Expungements

Yes and no.  Under Michigan law, “expungement” merely makes a formerly public adult criminal conviction record, nonpublic.  As far as the criminal justice system is concerned, you were still convicted of the crime; the only difference, is that after the conviction is “expunged”, it will not be visible to persons/entities outside the criminal justice system.  Who does that include? Potential employers, educational institutions, and lawyers like me, who are not employed by Prosecutors’ offices.  I am informed that Federal Immigration/Customs authorities will continue to have access to this information.

Expungements are governed by statute, specifically MCLA §780.621, which requires eligible persons to apply to the court where the conviction was entered.  If the conviction was out-of-state, you must go there (if you are eligible for expungement at all, in that other state); if your conviction was in a Michigan court far away, you must go there.


Who is eligible?

  1. A person who has at least five years since the latest of the following
  • Imposition of sentence;
  • Completion of probation;
  • Discharge from parole;
  • Completion of any term of imprisonment
  1. A person convicted of no more than one felony, AND no more than 2 misdemeanors, can petition the convicting court to set aside the felony;
  2. A person with no more than two misdemeanor offenses, and no other felony offenses, may ask the convicting court to set aside one or both of the misdemeanor convictions;
  3. A person convicted of 4th degree criminal sexual conduct under MCLA §750.520e, provided that:
  • The person who committed the offense is not older than 21 years of age;
  • The conviction predated January 12, 2015;
  • The person who committed the offense has not been convicted of another offense, other than two “minor offenses”, defined as
  • Offenses with maximum imprisonment time not exceeding 90 days;
  • The maximum fine is no more than $1,000.00

New “Clean Slate” Legislation

New legislation passed into law in Michigan, should start making the process of expungements easier, and in some cases, starting in April 2023, automatic. Specifically:

  1. Beginning in 2023, creating an automatic process for expunging eligible misdemeanors after seven years, and eligible non-assault felonies after 10 years;
  2. Expanding the number and revising the types of felonies and misdemeanors eligible to be set aside by application (effective April 2021);
  3. Revising the waiting periods before being eligible for expungement;
  4. Treating multiple felonies or misdemeanor offenses arising from the same transaction as a single felony or misdemeanor conviction, provided that the offenses happened within 24 hours of one another, and do not involve assault, possession/use of a dangerous weapon, or any other crime carry a penalty of 10 years or more in prison;
  5. Expanding the eligibility for expungement of various traffic offenses; paragraph on the person to petition to set aside one or more marijuana offenses if the offense would not have been a crime, if committed after the use of recreational marijuana by adults became legal in Michigan

Do you have questions regarding your eligibility for expungement of a past criminal offense? Give Jon Frank a call at (586) 727-1900, or email at jon@jonfranklaw.com

Frequently Asked Questions. Honest Answers.

One minute, you are free, and the next minute, you are not. Obviously, the moment the police stop you, is the moment everything changes so the first question, is whether the police stopped you lawfully.

The truth is, that the police do not need to KNOW anything, in order to lawfully stop you. They need only have a “reasonable suspicion”; they do not need “probable cause”. The US Supreme Court held that police can even conduct a pat/down search frisk, based on this low standard of “reasonable suspicion”.

It means that under certain limited circumstances, the police do not need a warrant for your arrest, or to seize evidence. As long as one of these “warrant exception” factual scenarios exist, the arrest and/or the seizure of evidence will be considered lawful and legitimate.

What is a search/arrest warrant, and how do police physically obtain them? The warrant itself is a document which is authorized by a local court, with the appropriate jurisdiction. The police usually coordinate with the local Prosecutor’s office, and an affidavit is filled out that will either convince the local judge to grant the warrant or not. Usually, judges will be very accommodating on such warrants, although there are limits to that accommodation; the search warrant affidavits may well be held defective on further review.
Once again, the terms of the 4th Amendment itself require that the warrant state “with particularity” “the place to be searched, and the persons or things to be seized.” If the police and the Prosecutor went overboard, in their pitch to the Judge/magistrate, in seeking the warrant, this could be a basis to overturn the arrest, or even the prosecution itself, if the evidence is suppressed

There are ten recognized exceptions:

Exception #1: Search Incident to Lawful Arrest

Under Arizona v Gant, police are permitted to conduct a warrantless search of the person, and the immediate surroundings of the person, to seek out dangerous weapons, or evidence that may otherwise be destroyed.  Cases hold that where the arrest is determined to be unlawful, so too, will be the seizure of evidence.

Exception #2: Plain View Exception

As long as police have a right to be where they were, when they saw evidence of a crime in plain view, there is no requirement that a search warrant be obtained.  Washington v Chrisman is an example of a case in which the seizure of evidence in plain view, was upheld, despite there being no warrant. A notable example of a “plain view” evidence seizure is where the police rummage around through your garbage; yes, they sometimes do that, because no, we have no expectation of privacy in trash put out to the curb.  That’s what the US Supreme Court held in California v Greenwood.

Exception #3: Consent to Search

If a person with proper authority consents to a search, they will not be heard to complain about it, in the event evidence is obtained.  If that consent is found to be obtained deceptively, the court may hold the evidence to have been taken without consent, and it may be “suppressed”. However, the US Supreme Court held in Schneckloth v Bustamante, that knowledge of a right to refuse the police consent to search is a factor to be taken into account, the Prosecutor does not need to prove that the one giving permission to search knows that he/she has a right to withhold that consent.

Exception #4: Stop & Frisk

We already reviewed this above, in connection with “stops”.  If the police find probable cause, during a lower-standard “reasonable suspicion” stop, no court in America is going to require them to get a warrant.  This was the basis of the Terry decision cited above, and it is often the basis on which serious/infamous/”most wanted” criminals are stopped; you may recall that Timothy McVeigh was stopped after the Oklahoma City bombing, based on a busted tail light.

Exception #5: Automobile Exception

The US Supreme Court has held as early as 1925, that due to the inherent mobility of automobiles, and the potential loss of evidence, police are given significant leeway to search autos, before warrants are required.  The officer must have probable cause to believe that the vehicle (which could be a boat, not just an auto), contains evidence of a crime, fruits of a crime, etc. This nearly century-old rule, remains the law to the present day.

Exception #6: Hot Pursuit

As the name implies, where law enforcement personnel must move quickly to prevent the escape of a criminal, or the destruction of evidence, the law will allow seizures of evidence, and arrests of persons, without warrant.  US v Santana, is an example.

Exception #7: Exigent Circumstances

Where there is a reasonable fear that people may be in danger, evidence may be destroyed, or a suspect may escape, police are given significant leeway to seize evidence and persons without a search warrant.

In Missouri v. McNeely, the Supreme Court clarified, “A variety of circumstances may give rise to an exigency sufficient to justify a warrantless search, including law enforcement’s need to provide emergency assistance to an occupant of a home . . . engage in “hot pursuit” of a fleeing suspect . . . or enter a burning building to put out a fire and investigate its cause.”  Courts will typically look at the time when the officer makes the warrantless search or seizure to evaluate whether at that point in time a reasonable officer at the scene would believe it is urgent to act and impractical to secure a warrant. Courts may also consider whether the facts suggested that the suspect was armed and planning to escape, whether a reasonable police officer would believe his safety or others’ safety was threatened, and whether there was a serious crime involved.

Exception #8: Inevitable Discovery

This “exception” is really one that swallows the rule, and shows just how biased courts have become, against persons charged with crimes.  Under the “inevitable discovery” exception, courts have held that evidence that would have been discovered inevitably, can be admissible, even without a search warrant.  Nix v Williams is an example.

Exception #9: Health/Safety of Suspect 

Where the police are actually trying to render aid to the person they wind up suspecting of illegal activity.  The Michigan case of People v Brzezinski is an example.

Exception #10: Inventory Search

Where a suspect is arrested, his/her property is inventoried, with the ostensible purpose of making sure the property is returned, once the suspect is released.  In Michigan, this is applied so expansively, that this has become another exception, which swallows up the rule; the cases hold that the police agency must have a written, definite policy on inventory searches.  Examples of inventory search cases include Florida v Wells, and South Dakota v Opperman.

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