Posted on 03/27/2006 11:32:48 AM PST by sit-rep
My best advise is to have your lawyer go after the original stop since you gave him permission to look in your car. That was all based on his stop and I do not believe he had probable cause.
Also look into the "ex post facto" angle. You have had that there for a long time and never used it. Clearly it was there for you own self defense (which you also have a right to) and was perfectly legal when initially obtained.
Finally, as others have stated, check into the shelf life of the CS gas and whether it was any danger to you or anyone...and make sure you get a jury involved. Like speeding to the hospital, since no one was injured or hurt, most people will undertsand this (hopefully) and either no-bill it at the grand jury level, or acquit you at trial.
Best of luck my friend and sorry you ran across such a bad apple...felony indeed.
Thanks Jeff,
It is messed up, but hopefully I'll get it reduced to a misdemeanor with 6 months probation, and if I'm good, it will go away...
Best of luck...please keep us posted. Hopefully it will be reduced to a point where it can just "go awy". But the fact that it was ever there in the first place is very troubling and extremely galling.
This may be true. But your lawyer could have quashed the contraband based on lack of consent.
I know you already feel bad, but this is for future reference.
When you're on the street, you're on the cop's turf, but when you get into court, you're on the lawyer's turf. Make it easier on your lawyer. Insist on your rights. You may not win the first round, but you'll win the second one.
Please don't think of pleading out yet.
You have a battle plan.
A) Is the chemical still active? If not, no crime.
B) Did the police have probable cause to stop you? If not, you win on a motion to suppress.
C) Did you give valid consent for the search of the glove box? If not, again, motion to suppress.
D) Is the car in your wife's name, not yours? If so, and you didn't confess, you have a 5th Amendment right not to incriminate yourself, and if they can't prove you knew it was there, then again, no crime.
They have the canister, right? And they can prove that the 22-year-old canister actually does contain, today, more than 35 grams of CS, right? Don't cop any pleas until they can prove that, because they have no case until they do. My guess is they won't bother, unless you or your wife have significant and recent criminal records.
You have FReepmail.
I've looked at Michigan statutes and find only one on this subject. Check your citation to verify that this is the section of your criminal code that you are charged with. The only one located is Michigan 750.224(d), which prohibits USE, but not POSSESSION. You should be able to get a copy of the statute at your local library.
If your citation references a different statute, please post it.
Beyond that, possession requires knowledge and if you are in wife's car with the pepper spray in the glove box, arguably you have no reason to know that it is onboard.
I hope this helps.
WEAPONS DANGEROUS-GAS EJECTING DEVICE 750.2241-B 5YR
750.224 Weapons; manufacture, sale, or possession as felony; exceptions; “muffler” or “silencer” defined.
Sec. 224.
(1) A person shall not manufacture, sell, offer for sale, or possess any of the following:
(a) A machine gun or firearm that shoots or is designed to shoot automatically more than 1 shot without manual reloading, by a single function of the trigger.
(b) A muffler or silencer.
(c) A bomb or bombshell.
(d) A blackjack, slungshot, billy, metallic knuckles, sand club, sand bag, or bludgeon.
(e) A device, weapon, cartridge, container, or contrivance designed to render a person temporarily or permanently disabled by the ejection, release, or emission of a gas or other substance.
(2) A person who violates subsection (1) is guilty of a felony, punishable by imprisonment for not more than 5 years, or a fine of not more than $2,500.00, or both.
(3) Subsection (1) does not apply to any of the following:
(a) A self-defense spray device as defined in section 224d.
~~~~~~~~~~~~~~
50.224d Self-defense spray device.
Sec. 224d.
(1) As used in this section and section 224, “self-defense spray device” means a device to which all of the following apply:
(a) The device is capable of carrying, and ejects, releases, or emits 1 of the following:
(i) Not more than 35 grams of any combination of orthochlorobenzalmalononitrile and inert ingredients.
(ii) A solution containing not more than 2% oleoresin capsicum.
(b) The device does not eject, release, or emit any gas or substance that will temporarily or permanently disable, incapacitate, injure, or harm a person with whom the gas or substance comes in contact, other than the substance described in subdivision (a)(i) or (ii).
Ping to statute, see above.
Even if they drop any jail time and offer some minimal fine, don't allow them to leave you with a felony conviction. This cop was a prick and an a$$hole - and a good example of why one should never, ever trust a police officer. Maybe they are mostly decent, but when one like this gets a place to bite you, you can pay forever.
Holy Crap ?????!!!!!!!
Keep us posted Dude......Damn Damn Damn !
So many BS laws in this crazy world that give a cop reason. My Girl Friday used to carry OC spray as well and I made her dump it for a small vehicle ABCD fireaxtinguisher that mounts to the center transmission hump. Got her the chrome bling bling version .......:o)
Spray that abrasive crap in some POS's eyes and lungs and then bash him with the empty container .....all legal !
Sorry , very sorry to hear of your dealings with the law friend.
Maybe the judge will grandfather the issue on the age of the container. See if ya can find the manufacturer and give them the data on the containers and ask when it was made and sold and if it is safe to still use etc etc . Don't tell em of your arrest or all you'll hear from them is ((((crickets))))....... Take that e-mail to court with ya to prove the date .
Like to be able to help ya more but it's a up to the judge deal now. Ask for a jury trial if your laywer supports it as jury nullification is a very good possibility on such an issue . (JUST A SUGGESTION) No priors will get ya a walk with probation at the very worst IMHO....
Wish ya nothing but good luck on this SR......Damn !!!
My admonishments to friends and family that venture forth upon the formerly-public streets and highways has changed from "Be careful" to "Do NOT attract the attention of Law Enforcement".
Tell everyone you know (and everyone reading this should do the same) that they need to assume they are under arrest the second they are "invited" out of the vehicle, and should just clam up and not consent to searches of person or vehicle.
It's a shame, but that's the way it is these days.
I hope this works out satisfactorily for you, but you should be prepared to live under this cloud for a year or more while things progress. Meanwhile, you and yours will be ripe targets if contacted by LEO for any reason. The criminal justice system is not about justice anymore, it is about order. The greatest freedom we have these days is obedience, and that's a fact.
Keep us advised how it goes. Best wishes, and our thoughts and hopes for a satisfactory outcome are with you.
Get an upper level attorney.
You've got freepmail. Call me at the number asap.
That's probably not good advice. While you can do that, it is going to raise the suspicion level of the cops to unholy levels. Expect to be detained while they call out a canine drug-sniffer unit.
You can talk yourself out of most situations if you're polite and cooperative up to the point where they're asking you to voluntarily waive your constitutional rights. At that point you tell them that your lawyer brother told you never to do that no matter how innocent you are.
Keep them coming, and tell everyone you know. This is B.S.
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