What to do when you're broke, in jail and all the local law offices are closed for the holiday?

December 30, 2006 9:16 AM

My sister's boyfriend is apparently being held in jail without charges. Is this legal?

He was pulled over yesterday in Wayne County, MI, probably for a traffic violation. The car is still in my sister's name, but she recently gave it to him because she got a new (used) car for Christmas. They had been planning on transferring the title and getting it properly registered this week, but didn't get around to it. He had an old license plate on it for show, and no registration. The cops searched the car and found (at most) a quarter ounce of marijuana. He is in a jail cell right now (somehow he was able to sneak in his cell phone so he has some limited communication with my sister). He says they haven't charged him with anything and are going to hold him until Wednesday. I've tried calling a couple law offices to ask if this is legal, but they're all closed until Jan 2. The cops have apparently told him that they "aren't done with him yet" and want him to snitch on the person who sold him the pot.

Of course he doesn't have any money for a lawyer, but he seriously needs one. I am concerned that his rights are being violated. Are they? Any ideas on what can be done for him?

posted by apis mellifera to law & government (32 comments total)

He does not have to say anything to anyone except a lawyer. He's entitled to a free lawyer. That's about it.
posted by odinsdream at 9:17 AM on December 30, 2006

IANAL, but, has he directly demanded that they release him? This is a pretty common situation, as I understand it...later, in court, they can say "Well, we told him we weren't done with him. He wasn't happy, but he never directly said that he was on his way out the door." I think he needs to say "I'm leaving. Unlock this door and let me out of here now."
posted by bingo at 9:25 AM on December 30, 2006

Has he been Mirandized? If he is under arrest, he is absolutely guaranteed a lawyer paid for by the state, without undue delay.

And, unless I'm mistaken... a quarter ounce is a pretty big chunk of weed to be carrying around in most parts of the USA, no?

IANAL, of course. He has rights to one--call the Public Defender's office and start combing the phone book.
posted by dirtynumbangelboy at 9:26 AM on December 30, 2006

There has to be at least a possession charge. He was caught with the weed. If he can't post bail Wed. may be the first day for an I bond hearing.
posted by Max Power at 9:32 AM on December 30, 2006

If he's in jail, he's in jail. Demanding to be let go is not going to work, I'm afraid.

He has at least two offenses pending: possession of a controlled substance and driving an unregistered vehicle with a bogus license plate on it. That's plenty to hold him until he is arraigned... which won't be until court is in session... which won't be over the holiday weekend... so certainly Tuesday, perhaps Wednesday.

He can ask for a public defender to be assigned to him. He probably won't meet the public defender until about 15 minutes before he goes to court on Tuesday or Wednesday. The public defender will help him plead not guilty to the charges. The judge may then choose to assign him a bail amount, or not.

It is *possible* that the police would let him go until the court date on Tuesday. If some fine, upstanding citizens (someone in your family or the boyfriend's family) went down to the jail, wearing a suit, talked about how he has always been a good boy before and they (i.e., the boyfriend's father) will make certain that the boyfriend shows up for the court date, it's possible the police would release him on his own recognizance until Tuesday/Wednesday. But they don't have to.
posted by jellicle at 9:35 AM on December 30, 2006

He has at least two offenses pending: possession of a controlled substance and driving an unregistered vehicle with a bogus license plate on it. That's plenty to hold him until he is arraigned...

Yes, as long as they arrest him for those charges. They can't just hold him because they think they might press those charges.
posted by bingo at 9:40 AM on December 30, 2006

It is a common tactic for some Vice and Narcotics offices to not charge people of a drug crime if they want the person to "cooperate." The reason for this is that if they actually charge the person, then it is a matter of public record. If it is a matter of public record, then the people that the police are hoping you can help bust might see that you have been charged with a drug-related offense. If they know you been charged with a drug-related offense, then they might be suspicious that you are working for the police when you try to buy more drugs from them.

It is done here all the time. However, they don't actually charge the person. They tell the person that they will charge them if they don't help. Then they give them time to think about it. I have had officers come back and charge a client of mine with a felony a month or two after they caught him because they the client did not help the police in the manner that they wanted.

However, the police absolutely cannot hold him like this. He is clearly under arrest. There is no judge in this country that would find that being locked in a jail cell does not rise to the level of being arrested. Bingo is right about being under arrest when the situation is roadside or at someone's house or in a police car. But having someone in jail eliminates any grey area for being under arrest.

My guess is that he has been charged with something. Call the jail and ask what he is being held for. They will probably tell you. Ask what his bond is. If it has not been set, ask when it will be set. It sounds like his bond may not be set until Wednesday. I would be surprised if Michigan allows for five days to pass without a bond being set. In my state there is a 48 hour waiting period if it is a domestic violence case. All other criminal charges must have a bond set (except for murder) within 24 hours. The bond can typically get revisited at the first appearance (Wednesday).

It is not at all uncommon for someone to have misunderstood what was going on and to not realize what they have been charged with. It is also not uncommon for the police to not keep someone as informed as they should. It would be exceedingly uncommon to hold someone in jail without charging them with a crime.

Call the jail. And I can't believe he possibly got into the jail with a cellphone. I have never heard of that.
posted by flarbuse at 9:42 AM on December 30, 2006

I'm sure he's in police lockup, which isn't quite the same thing as jail. He hasn't been arraigned yet (if he had, he'd've been told what the charges were), probably because he got caught after the courts were closed for the day on Friday, and there won't be a judge available, what with the holiday and all, until Wednesday. A friend of mine was once locked up over a weekend because he was pulled over Friday evening, but couldn't be arraigned until Monday.

Still, he ought to have been told what they were charging him with. He needs a lawyer, and he needs one now. If he can't afford one, he should have a public defender.
posted by cerebus19 at 9:50 AM on December 30, 2006

That cellphone story makes me wonder if the guy is making the whole thing up. Some effort should be made determining if the guy is actually in jail.
posted by cardboard at 9:55 AM on December 30, 2006

Rule 6.104(G) of the Michigan Court Rules may apply, if he's being accused of a felony. Apparently that rule hasn't been extended to misdemeanors, though. See section 5.2.2 of the magistrate's manual.
posted by nicwolff at 10:01 AM on December 30, 2006

Depending on the local state rules, they may be able to hold him 48 or 72 hours without a warrant of any kind.
posted by Malor at 10:40 AM on December 30, 2006

In Virginia I can guarantee you that if you are in possession then you are going to jail. Even an empty pot pipe is possession. And they do take you to jail immediately.
The cell phone thing seems so very weird. How did the cops miss that in your search. Not sure I can understand that one.
He has to say nothing. He has to say he wants a lawyer. Then shut up.
posted by JayRwv at 10:43 AM on December 30, 2006

Miranda doesn't apply if he's not being questioned and it sounds like they're delaying an indictment. Malor's almost right, depending on local jurisdiction he can be held without charges for that long before they choose to indict. Flarbuse's point that for all extensive purposes he's under arrest does apply for interrogation purposes (if he talked now w/o Miranda or asked for a lawyer and was denied one as the interrogation continued, his testimony would be excluded), but that doesn't mean that formal judicial procedings have begun. That too can depend on jurisdictions.

These rules don't matter much when a local sheriff decides to not come in until Tuesday, but he'll probably be processed then. And I've snuck in cell phone calls while handcuffed in a paddywagon, it's not so unbelievable.

Hope he stays calm and have as many people waiting for him as soon as he's processed and ready to go, so that he doesn't feel abandoned after such a difficult ordeal. The cops have most certainly made it seem to him that he'll never get out and he's probably very confused and scared now.
posted by allen.spaulding at 10:47 AM on December 30, 2006

... I can't believe he possibly got into the jail with a cellphone. I have never heard of that.

It happens---though they're usually smuggled in by others (guards, most likely). I know an attorney with a client serving a long sentence who, unfortunately for the attorney, has a cell phone in his jail cell.
posted by jayder at 11:10 AM on December 30, 2006

Legal Aid and Defender Association of Detroit. (Their website doesn't list hours that they answer the phone, though.)


Only for comparison: IIRC it used to be the rule years ago in Hennepin County, Minnesota, that you needed to be charged within 48 hours--but weekends and holidays didn't count against the 48 hours. So if you were brought in on a Friday night, and Monday was a holiday, it might be middle of the following week before they had to charge or release you. (And needless to say--I am not a lawyer.)
posted by gimonca at 11:24 AM on December 30, 2006

Thank you so much. I really appreciate all of the thoughtful responses. The fact that he was able to get the cellphone into his cell struck me as weird, too. There is a possibility that there's more to the story than he's telling us, but that's just a hunch. I cannot believe that he could legally be held for so long without an arraignment. I will probably call the police station and ask what he is being charged with. I am almost afraid to, though. I don't want to inadvertantly make his situation worse.
I think his own family has written him off as a fuck-up at this point and aren't going to cough up any money for legal fees. I fear the best he may be able to do is wait it out until wednesday an ask for his court-appointed attorney. Happy Freakin' New Year, right?
posted by apis mellifera at 11:30 AM on December 30, 2006

He's in Wayne County, that's Detroit. WCJ is a rotten jail:

- Understaffed
- Probably overcrowded
- The police don't really care if they're following every rule to the letter, they have much more important work to do - like getting lunch, shooting the shit with each other, and fucking with people

WCJ will hold him until they damn well want, because it's Detroit and that's how it works there. I know, from personal experience. You can't fight the system when you're in it, and the deputies know it. Even if you could, most folks don't know how to work the deputies to get what you need, so they piss them off, which usually leads to getting your ass kicked.

He's stuck, get accommodated to the idea that he's there until Tuesday or Wednesday at the earliest. He should keep his head down and his mouth shut. If he wants to bring a suit against the county, he should do it when he's out of range.
posted by disclaimer at 11:37 AM on December 30, 2006

I cannot believe that he could legally be held for so long without an arraignment.

It doesn't have to be legal, believe me. Cops pull all kinds of shit that isn't legal. I've known people who were illegally held for longer. I've also known ex-cops who liked to talk about the things they did. Good luck to the guy; he'll need it.
posted by digitalis at 11:38 AM on December 30, 2006

I am a lawyer and have never heard of anyone being put into a jail cell with a cell phone. Maybe, maybe, if he's in some kind of temporary drunk-tank like cell, but even this seems wrong. I suspect there is more to the story here.

Also, they strip-search you before putting you in a cell: they aren't going to just miss a cell phone.
posted by Mid at 12:53 PM on December 30, 2006

Legal, it's not:

544.170. 1. All persons arrested and confined in any jail or other place of confinement by any peace officer, without warrant or other process, for any alleged breach of the peace or other criminal offense, or on suspicion thereof, shall be discharged from said custody within twenty- four hours from the time of such arrest, unless they shall be charged with a criminal offense by the oath of some credible person, and be held by warrant to answer to such offense.

Of course, they could always wrap it up in the National Security blanket, which seems to suffocate many statutes like this
posted by Neiltupper at 1:38 PM on December 30, 2006

Duh, that's Missouri, not Michigan.
posted by Neiltupper at 1:41 PM on December 30, 2006

And, unless I'm mistaken... a quarter ounce is a pretty big chunk of weed to be carrying around in most parts of the USA, no?

Not really, no. The definition of a "small amount" varies, but usually the line is drawn somewhere around a full ounce.

According to NORML, possession in Michigan is a misdemeanor, but they can throw in the potential of a year or a $2k fine, but it looks like usually they just give probation and expunge it if you're a good boy.
posted by Tacos Are Pretty Great at 2:01 PM on December 30, 2006

Regarding the cell phone issue. He's probably in a holding cell if he hasn't been arrainged and it's likely he made the call either from the police car while the officers searched the rest of his vehicle or before they processed him. There's a small chance he's in an actual cell, but that's pretty uncommon without an arraignment.
posted by allen.spaulding at 2:19 PM on December 30, 2006

allen. spaulding: Miranda always applies when someone is arrested. That's what the Miranda decision was all about.

If this guy has been arrested, he's been Mirandized. If he's not under arrest, however, then the cops can drive him around and ask him whatever they want -- and he can shoot his mouth off and implicate himself, and THEN they can arrest him. Happens all the time. (However, if this particular dude hasn't been arrested, then something is truly funky/unspoken here, cell phone notwithstanding.)

...And purely a pet peeve: It's "all intents and purposes" (not "extensive purposes"), dammit!
posted by turducken at 3:31 PM on December 30, 2006

Right, but there's a grey area in here where he could be brought to the station and not be considered "under arrest." Also, Miranda only covers admissions made to the police that are to be entered into a trial. In many situations, police just won't bother. If the police aren't going to interrogate you, then you don't have a right to an attorney (or a phone call) for minor offenses before you are arraigned.

Yeah yeah, all intents. I make that mistake all the time.
posted by allen.spaulding at 3:50 PM on December 30, 2006

Tacos Are Pretty Great writes "Not really, no. The definition of a 'small amount' varies, but usually the line is drawn somewhere around a full ounce.

"According to NORML, possession in Michigan is a misdemeanor, but they can throw in the potential of a year or a $2k fine, but it looks like usually they just give probation and expunge it if you're a good boy."

Well, that's remarkably civilized.
posted by dirtynumbangelboy at 4:42 PM on December 30, 2006

Holy cow, Wayne County, population 2 million and there's no night court.. they just shut down?
posted by rolypolyman at 5:48 PM on December 30, 2006

The definition of a 'small amount' varies, but usually the line is drawn somewhere around a full ounce.

Y'all really need to just let Canada invade you.
posted by poweredbybeard at 6:50 PM on December 30, 2006

Call a lawyer, just pick one out of the phone book if you have to. Martindale Hubbell can also help. If you can't afford a lawyer call the public defender's office. It sucks to get busted on a holdiay weekend, but what an incredibly stupid thing to do in using an old license plate. You might as well put a sign in your window that says that the dope is in the trunk under the spare tire, oh and that you hate pigs. By the way, cellphone in the jail? Sounds fishy to me.
posted by caddis at 7:59 PM on December 30, 2006

Y'all really need to just let Canada invade you.

Most of Michigan would agree that they can have Wayne County.
posted by dagnyscott at 8:00 PM on December 30, 2006

I cannot believe that he could legally be held for so long without an arraignment.

I Am Only A Law Student (also: Canadian), but I do know that if the process can't be moved forward (e.g. if courts are closed, public defenders' office is closed etc etc) those days don't count against limitations...in all fairness to law enforcement, how could they?

More specific to the holiday season: weird things shut down, sometimes completely, sometimes as long as the week after Christmas and the week after New Years. This is coming from my experience in medical admin, but I seen cases where people needed verging-on-emergency procedures or tests done, and we couldn't even get anyone on the phone, let alone to do it. I wouldn't be at all surprised if the legal system ran the same way in certain jurisdictions.

Good luck, and please tell us how it turns out!
posted by sarahkeebs at 7:05 AM on December 31, 2006

the 48 - 72 hour hold "clock" doesn't necessarily start from the moment the suspect is stopped or handcuffed. often, it is when the suspect actually is booked at the station, meaning several hours could have elapsed. this then pushes all other times ahead, and is often used as a passive-aggressive tactic to keep someone a long time, especially over weekends and holidays, but is still within the bounds of legal hold times
posted by kuppajava at 9:07 AM on January 2, 2007