Charges dismissed after marijuana evidence destroyed

Charges dismissed after marijuana evidence destroyed

A Michigan State Police lieutenant’s decision to destroy more than 500 marijuana plants without a judge’s order has led to dismissal of felony charges against two defendants.

Inspector James Wolf, the former lieutenant/commander of the Western Wayne narcotics unit, testified at a hearing Thursday that he destroyed the plants because they were rotting and had become a health hazard.

Livingston County District Judge Carol Sue Reader expressed surprise that a law enforcement veteran was unaware he had to receive a judge’s order to destroy the 556 large, tree-size plants seized in a Western Wayne Narcotics and Criminal Investigations Unit’s investigation in 2015.

“I cannot believe an officer who has been in the (Michigan) State Police for 27 years would not have known about these steps,” she said. “It wasn’t taken in this case so the court order never got issued. It would be like going in and searching a house without a search warrant. …

“I don’t think (the officer) can complain the health, molding and everything is why he did it,” Reader said. “The judge should have been the one who issued the order.”

Reader dismissed multiple manufacture marijuana counts lodged against Darryl Scott Berry of Howell Township, and codefendant Jeffrey Allen Michael of Fowlerville.

However, Berry still faces a charge alleging he delivered marijuana to an undercover officer in October 2014. The attorney general’s office said the marijuana related to that count was not destroyed. The defense believes it was and expects that count also will be dismissed.

Michael remains charged with one count alleging he possessed marijuana found in his home as well as felony firearms.

Berry and Michael return to Reader’s Howell courtroom on Jan. 20 for a preliminary exam on the remaining counts.

Assistant Attorney General Paul Cusik told the court his office may file a motion asking Reader to reconsider her decision as well as to amend the felony complaint to delivery of marijuana allegations.

During a hearing Thursday, Wolf testified that the marijuana plants seized Sept. 28, 2015, were stored at two warehouses and, despite officers’ attempts to dry out the plants for preservation, they became a health hazard.

“We could not keep up with removing the water, the moisture from the plant, and they were decomposing,” he said. “The plants were rotting and molding. … We weren’t able to preserve them.”

Wolf said he contacted his supervisor as well as Cusik, who advised that “he could not tell me to destroy evidence.” Wolf said he then made the decision himself to destroy the seized marijuana plants because it was a health hazard.

The plants were destroyed about three days after the seizure.

On cross examination, defense attorney Michael Komorn, who represents Berry, asked Wolf if he was familiar with a Michigan law that states a court order is needed to destroy evidence.

“Not until reading your motion,” Wolf replied.

Cusik argued the evidence is not destroyed because scientists with the Michigan State Police crime lab took “a sample” from each plant seized at Wolf’s request during the execution of the 2015 search warrants executed at five properties in Livingston County. Court documents show police seized an estimated 545 plants.

This step to preserve evidence, Cusik argued, showed officers acted in good faith.

“There is not any destruction of evidence,” he said. “… There are lab reports on the samples, which have been preserved.”

Officers also seized about 15 pounds of marijuana, 7 pounds of processed marijuana and suspected marijuana edibles, and more than $195,000 in cash, according to court documents.

Komorn argued the state acted in bad faith and violated his client’s due process. He said there is no way for the defense to confirm how badly, if at all, the plants had decomposed because there is “no description, no report, no additional photos” to prove what police claimed.

“We’re asserting my client was under the amount allowed and protected under immunity” in the Michigan Medical Marihuana Act, Komorn said.

“The state says no. How do we argue that? We have to accept their word? We’re going to resolve it by trusting the prosecution and investigating officers … and forensic scientists who have no training in collection of evidence?” he asked. “Their job is to analyze, not collect the evidence. … There was clearly an intention to destroy (the marijuana plants) from the outset.”

Two of the codefendants earlier entered plea deals and are awaiting sentencing.

Contact Livingston Daily justice reporter Lisa Roose-Church at 517-552-2846 or lrchurch@gannett.com. Follow her on Twitter @LisaRooseChurch.

Arizona Drug Firm Insys Makes Synthetic Pot

Arizona Drug Firm Insys Makes Synthetic Pot

Arizona Drug Firm Insys Makes Synthetic Pot Compound, Spends Big to Defeat Legal Pot

Thursday, September 8, 2016 at 2:53 p.m.

A Chandler-based drug firm under investigation for its aggressive sales of a lethal painkiller claims that the large donation it made to a group that opposes marijuana legalization was an attempt to protect the public’s safety.

Insys Therapeutics, Inc., which has made billions selling a fentanyl-based drug called Subsys, expects to soon launch a pharmaceutical version of THC, the main psychoactive ingredient in cannabis.

But first, it aims to eliminate the competition.

On August 31, Insys made a $500,000 donation to Arizonans for Responsible Drug Policy, (ARDP), a group that’s trying to convince voters to reject Proposition 205 in the November 8 election. The ballot initiative, if approved, would grant adults 21 and older the freedom to use, possess, and grow marijuana, and would set up a limited system of cannabis retail outlets.

Prop 205 “fails to protect the safety of Arizona’s citizens, and particularly its children,” according to a statement Insys provided to New Times on Thursday in response to a message left for CEO John Kapoor. “Our stance is consistent with our company’s goals. We strive to develop pharmaceutical products for the supportive care of patients while taking patient safety very seriously. To that end, we believe that all available medicines should meet the clinical standards set by the FDA.”

Yet while Insys holds itself out as the savior of Arizonans’ health, the company is reportedly under investigation in four states, including Arizona, for marketing practices related to Subsys that have allegedly resulted in patient deaths.

 

According to numerous published reports, Insys salespeople pushed the highly potent drug on doctors for uses beyond cancer pain, for which it was designed. A favored Wall Street buy until critical news stories caused its stock price to plummet in 2015, the publicly held company was most recently sued over its practices by the state of Illinois.

“The consumer fraud lawsuit follows an investigation by the state into allegations that Insys was marketing Subsys broadly for chronic pain in non-cancer patients, despite the lack of Food and Drug Administration approval for such use,” according to an August 26 article in the Chicago Tribune.

J.P. Holyoak, chairman of the group behind Prop 205, the Campaign to Regulate Marijuana Like Alcohol in Arizona, says that by accepting the Insys donation, ARDP can no longer claim to represent “responsible drug policy.”

“They’re knowingly accepting money from one of the worst actors in the business,” Holyoak says. “This is a company engaged in illegal marketing schemes, that is intentionally hooking people on opioids.”

At a news conference in Phoenix on Thursday morning, Holyoak gave reporters a list of news-story headlines that paint Insys in a harsh light: “Murder Incorporated,” “Nurse Pleads Guilty to Taking Kickbacks From Drug Maker,” “Using Doctors With Troubled Pasts to Market a Painkiller,” among others.

The company is focusing on the upcoming launch of its synthetic THC product, Syndros. An oral version of the generic, THC-imitation drug dronabinol, Syndros would be used to treat anorexia associated with AIDS patients, as well as the nausea and vomiting that typically accompanies chemotherapy, according to the Insys website.

“Approximately 9,500 prescribers account for 70% of current dronabinol prescriptions,” the company asserts on its website. “Insys expects to convert a large portion of the market to Syndros as well as expand the market through direct detailing to physicians, highlighting the improved product profile of Syndros.”

J.P. Holyoak, chair of the Prop 205 campaign, blasted an anti-legalization group for taking $500,000 from a Big Pharma company that’s under investigation for the way it markets an opiate-based drug, and which hopes to produce a pharmaceutical alternative

 

Insys tells New Times that it “firmly believes in the potential clinical benefits of cannabinoids.” In addition to Syndros, Insys is conducting research on how cannabinoids — the compounds found in cannabis plants — might possibly treat epilepsy, anxiety, and PTSD.

Marijuana advocates claim that ingesting marijuana might be able to do the same thing — only less expensively and without as many side effects. Arizona already has a robust medical-marijuana program with about 100,000 patients and 99 dispensaries. The state’s Joint Legislative Budget Committee estimates that Arizona has a total of about 600,000 regular cannabis consumers who are 21 or older. Except for the medical-marijuana patients, who pay about $300 for their freedoms, Arizona law states that possession of any amount of marijuana, or simply a pipe to smoke it in, is a felony.

Though the American public has become more tolerant of marijuana in recent years, opponents to legalization in Arizona have the establishment on their side. The ARDP has taken money from the alcohol industry, chambers of commerce, construction companies, and medical groups. State campaign-finance reports show that since May, the ARDP has collected about $1 million in contributions, including the half-million check from Insys.

Arizona Governor Doug Ducey has played a big role in soliciting donations for the ARDP, Holyoak says.

Steve Sanghi, CEO of Microchip Technology, told the press in July that he made a $25,000 contribution to the ARDP after receiving a personal phone call from the governor asking for money.

Insys declined to answer follow-up questions, including whether Ducey had urged its recent donation. 

Ducey’s office didn’t return a message seeking comment for this story.

The CRMLA, meanwhile, has raised more than $223,000 since May — all from local dispensaries or the national Marijuana Policy Project.

 

 

US court upholds ban on selling guns to marijuana card holders

US court upholds ban on selling guns to marijuana card holders

SAN FRANCISCO — A federal ban on the sale of guns to medical marijuana card holders does not violate the Second Amendment, a federal appeals court said Wednesday.

The ruling by the 9th U.S. Circuit Court of Appeals applies to the nine Western states that fall under the court’s jurisdiction, including California, Washington and Oregon.

It came in a lawsuit filed by S. Rowan Wilson, a Nevada woman who said she tried to buy a firearm for self-defense in 2011 after obtaining a medical marijuana card. The gun store refused, citing the federal rule banning the sale of firearms to illegal drug users.

Marijuana remains illegal under federal law.

Wilson said she was not a marijuana user, but obtained the card in part as an expression of support for marijuana legalization.

She challenged guidance issued by the federal Bureau of Alcohol, Tobacco, Firearms and Explosives in 2011 that said gun sellers should assume people with medical marijuana cards use the drug and not sell them firearms.

It’s illegal for a licensed firearm dealer to sell a gun to an Oregon medical or recreational marijuana consumer, said Portland lawyer Leland Berger. He noted that the ruling is focused on sales and doesn’t affect medical marijuana consumers who already have guns.

The 9th Circuit in its 3-0 decision said it was reasonable for federal regulators to assume a medical marijuana card holder was more likely to use the drug.

The court also said Congress had reasonably concluded that marijuana and other drug use “raises the risk of irrational or unpredictable behavior with which gun use should not be associated.”

“The notion that cannabis consumers are violent people is absurd,” Berger said, calling the notion that classifying medical card holders who use marijuana to treat debilitating medical conditions as violent people is “even more absurd.”

Paul Armentano, deputy director of NORML, a nonprofit that works to reform marijuana laws, called on Congress to “amend cannabis’ criminal status in a way that comports with both public and scientific opinion, as well as its rapidly changing legal status under state laws.”

“Responsible adults who use cannabis in a manner that is compliant with the laws of their states ought to receive the same legal rights and protections as do other citizens,” he said in a statement published on the nonprofit’s website.

Wilson’s attorney, Chaz Rainey, said there needs to be more consistency in the application of the Second Amendment. He planned to appeal the decision and his options include submitting the appeal to the same panel of judges that issued the ruling, a larger panel of the circuit court or the U.S. Supreme Court.

“We live in a world where having a medical marijuana card is enough to say you don’t get a gun, but if you’re on the no fly list your constitutional right is still protected,” he said.

The 9th Circuit also rejected other constitutional challenges to the ban that were raised by Wilson, including her argument that her gun rights were being stripped without due process.

Armentano said the idea that marijuana users were more prone to violence is a fallacy.

“Responsible adults who use cannabis in a manner that is compliant with the laws of their states ought to receive the same legal rights and protections as other citizens,” he said.

Alex Kreit, a marijuana law expert at Thomas Jefferson School of Law in San Diego, said the ruling was significant — but may not be the last time the 9th Circuit addresses medical marijuana and gun rights.

“It seems like the court did not foreclose the possibility of a challenge by actual medical marijuana users that they shouldn’t be lumped with other drug users in terms of concerns about violence,” he said.

— The Associated Press

September 01, 2016

 

Inside the Legal Struggles of Michigan’s Medicinal Marijuana Industry

Inside the Legal Struggles of Michigan’s Medicinal Marijuana Industry

Last night’s episode of VICELAND’s  Weediquette focused on how police forces in Michigan are using civil asset forfeiture to target legally run medicinal marijuana businesses in the state.

Weediquette host Krishna Andavolu – about his reflections after filming the episode; an edited and condensed version of his comments are below.

READ THESE REGARDING SHATTUCK
Komorn Law – Shattuck Case

In Michigan, medical marijuana is legal—but last year, arrest rates were on the rise. Why? It seems like marijuana legalization is meant to at least take the drug out of the realm of the criminal justice system, but while doing research for this season of Weediquette, we found out that there’s still a strong incentive for police officers to go after legal marijuana growers in Michigan. The doctrine that the incentive is based off of is called civil asset forfeiture—which means that if a cop busts you, he or she can take your stuff in addition to throwing you in jail and charging you.

 

Even though medical marijuana growers have cards that say that they’re legally allowed to grow, civil asset forfeiture incentivizes police departments in Michigan to pursue really small technical violations

 

—For instance, if there’s a lock on a door that isn’t secure enough, or a key to a room in your grow house or dispensary is left on a counter when it should’ve been in a safe space. So law enforcement targets medical marijuana growers, finds enough evidence to justify a raid, takes all the growers’ stuff, and then makes an excuse for it after the fact.

It’s tough for Michigan cops. The state’s economy is pretty bad, and a lot of their police departments aren’t funded particularly well—so the police are using the doctrine of civil asset forfeiture to target mom-and-pop businesses. One of those businesses was run by the Shattucks, a family we visited who decided to go into the medical marijuana business because they saw people using it and thought it would be a good business to try for a couple of years to raise some capital to go into real estate. They were after the American dream, small business ownership.

However, the St. Clair County drug task force got wind of what they were doing, raided their grow facility, dispensary, and home, and took more than $80,000 worth of their goods. Losing the money and goods was bad enough—but their kids were also at home when the SWAT team came through the door, so their nine-year-old daughter is the one who saw the door broken down and men with guns rushing in.

You could look at the Shattucks and say, “I’m sure they were doing something wrong.” But a SWAT team seems like a disproportionate reaction. It’s an issue of how you implement medical marijuana legalization, but also of what we ask for in our community policing. What’s the relationship between those who are being policed and the police themselves? How do you balance making sure that the marketplace is legitimate while also respecting the people who are already operating legitimately in the marketplace? The Shattucks did everything they could to show the cops that they were doing the right thing—they met with the police department and showed the cops all their paperwork—but that didn’t stop the police from going after them two months later.

Another family we talked to, the Fishers, were in a hearing about a similar criminal case against them, and under cross-examination, the police officer who conducted the raid was asked if he questioned the family about whether they had medical marijuana cards—and he said no. There aren’t lawmakers who are trying to crack down on this stuff, so in a lot of cases drug task forces have no legislative oversight, meaning it’s up to individual cases in court to set any sort of precedent.

On Weediquette, we cover a lot of different stories—stories about medicine and recreational drug use—and this story is about how pot has always made it easy for law enforcement to go after vulnerable communities. We’re on a trajectory where medical marijuana and marijuana in general is going to become legal—it feels inevitable and that the war on drugs will also inevitable fade away—but stories like this bring to light that there’s a lot to still fight for.

WATCH THE TV EPISODE

https://www.viceland.com/en_us/show/weediquette-tv

WILSON V. LYNCH

WILSON V. LYNCH

S. ROWAN WILSON,
Plaintiff-Appellant,
v.
LORETTA E. LYNCH, Attorney General; BUREAU OF ALCOHOL, TOBACCO, FIREARMS AND EXPLOSIVES; B. TODD JONES, as Acting Director of U.S. Bureau of Alcohol, Tobacco, Firearms and Explosives; ARTHUR HERBERT, as Assistant Director of U.S. Bureau of Alcohol, Tobacco, Firearms and Explosives; and UNITED STATES OF AMERICA, Defendants-Appellees

 

Appeal from the United States District Court
for the District of Nevada
Gloria M. Navarro, Chief District Judge, Presiding
Argued and Submitted July 21, 2016
San Francisco, California

Summary

The panel affirmed the district court’s dismissal of a
complaint challenging the federal statutes, regulations, and
guidance that prevented plaintiff from buying a gun because
she possesses a Nevada medical marijuana registry card…

Read the Full Opinion Here