Charges dismissed after marijuana evidence destroyed

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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.