Possession, Conspiracy, Aiding and Abetting
A person may be implicated in a criminal matter for aiding, abetting or conspiring even though that person is not the actual perpetrator of the offense. In addition, criminal offenses which involve the element of “possession” (drugs, stolen property, weapons) do not require actual physical possession or ownership of the illegal property. The legal theories of aiding, abetting, conspiracy, possession are widely used in every jurisdiction, including in our Macomb County Courts, to prosecute culpable individuals that may be indirectly connected to a crime. Unfortunately, the law enforcement arm of government can build a case against a party, even an innocent party, based upon stretching the limits of circumstantial evidence, misunderstandings and the spurious statements of others.Retain a Lawyer if You the Subject of a Criminal Investigation
If you are the subject of a criminal investigation, or charged with a crime, it is always wise to consult with an experienced criminal defense attorney as soon as possible before talking to the police. The police use interrogation tactics to gain information. Even those that deny any wrongdoing may be hurting themselves beyond repair by making statements to the police that:
- Place them at the location of a crime scene.
- Establishing relationships with other suspects.
- Give evidence of motive to commit the crime (drug addiction).
- Provide inaccurate information which supports a charge for filing a false police report.
- Get set up for a polygraph without first consulting with a lawyer.
On a case by case basis, ABDO LAW will analyze a case from every angle to determine whether or not it is in the best interests of our client to speak with the police.Possession of Illegal Drugs, Firearms or Other Property
Possession is 10% of what you think it is and 90% of what the law says it is!
- Actual Possession: When the illegal property is found in the hands or on the person. Being found in a person’s pockets, shoes or clothing are all examples of actual possession. It is very difficult to attack a criminal possession charge when the police can show actual possession. However, although difficult to prove, a criminal charge may be dismissed when the underlying police search and seizure is illegal or not supported by legal grounds (probable cause, consent). Holding the illegal property for someone else is not a defense since ownership is not required to establish possession.
- Constructive Possession: A person need not have actual physical possession of illegal property to be found guilty of possessing it. Constructive possession of property refers to a person’s right to access or control property which can be proven by circumstantial evidence and reasonable inferences therefrom. Some examples of constructive possession involve illegal property found within storage compartments of a car or within an unused room in a building.
- Joint Possession: Possession may also be “joint” with more than one person. Joint possession cases are based upon the potential for others to control the illegal property because of the relationship and proximity. For example, if drugs are found on the seat of a car between 2 passengers, both may be charged under the theory that they both had the ability to control the illegal property. The theory of joint possession is also used to implicate innocent spouses or persons residing in the same household with the underlying perpetrator.
Conspiracy involves an agreement between two or more persons to commit a criminal act. Proof of the actual criminal act in furtherance of the conspiracy is not necessary since the crime is complete upon forming an agreement to accomplish the crime. Conspiracy may be charged as a misdemeanor or a felony, depending upon the circumstances. MCL 750.157a provides a list of possible penalties upon being convicted of conspiracy in Michigan.
Unites state of America vs. John DeLorean: In 1982, John DeLorean, automotive engineer and manufacturer, was charged with conspiracy to obtain 55 pounds of cocaine from federal undercover agents. The FBI surveillance video revealed that DeLorean was awkward and uneasy during the undercover operation. DeLorean told his attorney that he thought he was dealing with gangsters and was afraid for his life if he did not show an interest in the drug deal. The video was used as a prime piece of evidence and DeLorean was acquitted based upon entrapment by federal agents.Aiding & Abetting: Driving the getaway car or acting as a lookout person
Aiding and abetting is a theory that permits vicarious liability to be imposed on accomplices to a crime. If a person knowingly assists or participates with another in committing a crime, the law holds the person responsible as an aider and abettor. An aider and abettor faces the same punishment as the actual perpetrators as though the aider and abettor had engaged in such conduct himself.
Mere Presence: Without more, mere presence at the scene of a crime is not sufficient to establish aiding and abetting. The Michigan jury instruction for “mere presence” provides as follows: Even if the defendant knew that the alleged crime was planned or was being committed, the mere fact that [he/she] was present when it was committed is not enough to prove that [he/she] assisted in committing it.
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