In June 2014, Defendants home in Rochester Hills was raided by police. The raid resulted in the discovery of an alleged 3,379 grams of marijuana clippings and 113 marijuana plants. The police also found digital scales. Both defendants were charged in Oakland County with manufacturing 20 or more plants and possession with intent to deliver.
Issue:
Defense brought a motion for dismissal of the case based on the belief that their actions as caregivers and patients were protected under the section 8, Medical marijuana Defense. There are three requirements necessary to prove this defense, but in this case the only contested issue is Rule 8(a)(2).
Rule:
Rule 8(a)(2): The patient and the patient’s primary caregiver, if any, were collectively in possession of a quantity of marijuana that was not more than was reasonably necessary to ensure the uninterrupted availability of marijuana for the purpose of treating or alleviating the patient’s serious or debilitating medical condition or symptoms of the patient’s serious or debilitating medical condition.
Analysis:
The main issue in this rule is determining what is “reasonably necessary” to provide the patient with an uninterrupted availability of marijuana to treat the patient’s serious or debilitating medical condition.
Each of the patients testified to the existence of their serious and/or debilitating medical conditions and to their monthly medicinal needs.
The combined needs of these registered patients was found to be approximately 14 lbs (224 ounces) per month.
It was testified to during the hearing, that out of the alleged 110 ounces of marijuana the police had confiscated, only about 4 lbs (64 ounces) of the plant were actually usable medicine.
Based on the needs of these patients the amount of usable medicine that was found in possession of the caregiver was enough to adequately supply his patients for only 8.5 days!
With respect to the 113 marijuana plants found in the Defendant’s home: Defendant testified that the next harvest would consist of 39 plants that would produce roughly 7.5 pounds (120 ounces) of usable marijuana.
The court concluded on this issue that, given the facts provided:
“the Defendants did not possess more marijuana plants than was reasonably necessary to ensure the uninterrupted availability of marijuana for the purpose of treating and alleviating the debilitating medical condition of Joseph and the patients.”
Prosecution claimed that total amount of plants and marijuana was not reasonably necessary, but backed these claims with no evidence. Instead, Prosecution tried to claim that since there was a significant portion of the plant that had to be thrown away, due to lacking medical benefits, that not all of the plant material produced is “reasonably necessary”.
The court responded to this argument unequivocally:
“common sense dictates that it was necessary for Defendants to grow enough plants, which necessarily includes growing leaves, to acquire sufficient marijuana flower or buds to provide to the patients. The fact that Defendants were essentially essentially forced to discard portions of the marijuana plant tat could not be used to treat patients does not, in this court’s opinion establish that Defendants possessed more marijuana than was reasonably necessary.”
Conclusion: The court found that the defense successfully presented prima facie evidence regarding MCL 333.26428(a)(2). Furthermore, the court found that no question of fact existed. As a result, the court determined that Defendant’s are entitled to a dismissal of their case.
Komorn Law PLLC is proud to report a ruling today from the Genesee County Circuit Court.
This case involved my client’s property and all kinds of salacious allegations of really bad behavior by this property, and I mean bad stuff, like stuff you could never imagine property could actually do.
To add to the drama of all this unimaginable behavior by my clients property, the accuser was an ” entity” called FANG. The story for the last 3 years, told by the State ( the ATTORNEY’S for FANG) was that that the bad behaving property needed to be held by FANG, because it was bad behaving ( if this makes no sense, it is not supposed to).
Additionally FANG was of the opinion that because of these allegations they should be able to keep all of my client’s bad behaving property (there has been no conviction).
Today in the civil forfeiture against my client and his “allegedly evil” property the Court granted our motion for summary disposition ( no genuine issue of fact existed to which reasonable minds could differ) ultimately dismissing the forfeiture case and ordering the return of all that bad behaving property.
Posted by Michael Komorn , 12 April 2017 · 792 views
Our client, a medical marijuana patient registered with the State of Michigan, was out for a boat ride and some fishing on his friend’s boat. What started out as a glorious day with intentions of sun and fishing on the Detroit river later turned into federal charges of possession of marijuana (21 USC 844, 21 USC 844a) when a Border Patrol agent pulled up to them and wanted to search their vessel.
Related: Michigan law regarding marijuana manufacture, delivery, and possession The federal border patrol agent required that the two passengers, my client and his friend, open all the containers in the immediate area, to which they complied.
After the agent found no contraband, he demanded that the occupants of the boat hand over the marijuana because, according to the agent, it smelled like marijuana on the boat.
Additionally, the agent said that if someone did not give him the marihuana, he was going to call the K9 unit. What does the driver of a car or boat say in response to a law enforcement officer demanding that the occupants of the vehicle hand over the marijuana, or else?
For a vehicle, we know that the traffic stop can’t or shouldn’t take last for any longer that it takes to execute the traffic stop, identify and inform the driver of the violation, and issue a ticket, if appropriate.
A traffic stop is not an opportunity to gather evidence of probable cause of the vehicle to search. That basic threat, calling the dogs, would be unconstitutional. That is to say, the delay in calling the dogs to get probable cause would be a delay beyond the scope of the lawful police interaction. The delay to call the dogs is a delay for the purpose of getting probable cause to search the vehicle. Most times this decision on how to respond should be determined on a case-by-case factual basis. In other words, depending upon what is within the vehicle, the driver may or may not comply with the request of the officer.
The rule of thumb, however, is to never consent to a search, ever. Equally important is the rule that you should never talk to the police or answer questions. Specifically, in these traffic encounters, or even vessel encounters, the investigated driver is not under arrest.
The encounter is an interaction called an investigation, and anything that is said during this encounter will be used against you. Ultimately, our client handed over the marijuana cigarettes and his patient card.
As my client was reminded by the Border Patrol Agent, there is no medical marihuana on federal jurisdiction. Or said another way, it was the intent of this agent to make a federal case out of it.
After being retained by our client, and after a few pretrial conferences and conferences with the Assistant United States Attorney, we learned that it was also the intent of the United States Government to make a federal case of it. Federal jurisdiction, as mentioned above, is a very different venue to litigate a marihuana case, even if it’s just for a joint or two.
The liabilities for punishment are much greater, and in certain situations get worse, the more the accused litigates the case. That is to say, any benefits of resolving the case with a plea bargain are minimized should you force the government to litigate the case. It is under these circumstances that we needed to make our decisions on how to proceed.
As we got closer to the day of trial, the Government offered a number of different plea offers and options to resolve the case. Unfortunately, none of them contemplated the medical use of marihuana while being supervised on probation.
Similar to many of the State Courts throughout Michigan, the likelihood of any probation supervision of any kind would preclude the medical use of marihuana.
Not directly pertinent to this case either factually or due to our federal court venue, the only Michigan case law that addresses the issue is a recent case in the Court of Appeals, People v Magyari, the defendant argued that, pursuant to the MMMA, the court could not prohibit his medical marijuana use during probation because he possessed a patient card, but the court’s opinion characterized the defendant’s use of marijuana as non-medical, and did not apply their reasons for upholding the lower court decision the appeal to all cardholders.
A probation condition disallowing his medical use of marijuana was not acceptable to my client, and besides, who would want to plead guilty to something that the state government has authorized you to possess, let alone be on probation for the same behavior? So as often is the case, the choices that presented themselves compelled us to reject the offers to plead guilty and instead litigate the case.
Our response to the offer to plead guilty was to file a “Motion to Dismiss Based Upon Justice Spending Funds to Prevent Implementation of Michigan Marijuana Laws.” I think it is more than ironic that as we put together the motion challenging the federal government’s authority and jurisdiction to prosecute the matter, the issue of States’ Rights was in the forefront in a national debate. As outlined in the motion, the legal authority prohibiting the jurisdiction of the government in our matter was vitiated by the Cole memorandum – both of them.
Additionally, the Rhorabacher-Farr amendment was more than clear in its intent to preclude federal agents employed by the DOJ, including the DEA, from investigating or prosecuting medical marihuana patients that are in compliance with state law. If there was ever a case with the perfect facts to prevail upon it would be this case, and the mere two marijuana cigarettes.
In contrast, the circumstances of the case cited, US v McIntosh, dealt with dispensaries and commercial marihuana sales. Our case was as authentic patient activity as one could find. After filing the motion to dismiss, and appearing for the motion hearing, we learned that the Government had decided to dismiss the case. The AUSA indicated to me that he had “no desire to go to the mat with me on this case” and he was “not going to make bad case law with this case.” Or said another way, he knew that he was going to lose, and instead of dealing with that result which would be precedent and impact the entire Sixth Circuit Trial Court, he thought it best to dismiss the case, and let us go on our way.
The moral of this story is that when they make a federal case out of it, you should do the same.
DETROIT, Mich. — A judge on Wednesday heard arguments in a federal class action lawsuit filed by medical marijuana patients and caregivers against several Michigan law enforcement and crime lab officials.
The suit, filed in June, claims that because of false lab reports, prosecutors are charging people with felonies without proof, illegally arresting them and seizing assets. Four patients and caregivers are suing the directors of the Michigan State Police, their crime labs and the publicly-operated Oakland County lab and that county’s sheriff.
Chief Judge Denise Page Hood of the U.S. District Court for the Eastern District of Michigan in Detroit said she will issue an opinion and decide whether the labs’ marijuana reporting policies violate the Fourth Amendment and due process rights of the medical marijuana patients and caregivers.
“The problem is, the way that the Oakland County lab and the Michigan State Forensic Science Division is reporting still would allow for arrests, still would allow for these patients and caregivers to not have immunity because they’re reporting it as something other than marijuana,” said Michael Komorn, the plaintiffs’ attorney. “And the law enforcement community, as far as we know, is still arresting people for possessing these substances.”
In court Wednesday, Defense Attorney Rock Wood with the Michigan Attorney General’s office representing the state police and crime labs’ directors, along with Defense Attorney Nicole Tabin representing the Oakland County lab’s director and sheriff, declined requests for comment. Wood argued this is not a case involving altered, hidden or destroyed evidence. Instead, the defense writes in their motion to dismiss the case:
“The MSP policy is consistent with the current national standard for testing of seized drugs and avoids speculation as to the source of chemical components unless there is zero qualitative uncertainty.”
Ultimately, the labs’ policy states that unless there is marijuana plant matter seen along with THC, scientists label it “Schedule 1 THC, origin unknown,” instead of marijuana. This is the difference between a felony, or a marijuana possession misdemeanor which patients and caregivers can be immune for under the Michigan Medical Marijuana Act.
The plaintiffs’ attorneys and their experts say that 100 percent certainty for any evidence, even DNA is not possible.
“You know that nobody’s going to go through the trouble of synthesizing THC, along with other cannabinoids,” said Timothy Daniels, another attorney representing the plaintiffs. “And therefore you know to almost a 100 percent, and I won’t say 100 percent, let’s say 99 percent certainty, that is marijuana, not synthetic.”
Overall, the Michigan Medical Marijuana Act protects licensed patients and caregivers from charges and prosecution for having limited amounts of usable marijuana, not THC with an unknown origin. It’s this lab policy the suit is working to stop.
“It’s a little troubling that the defense is still suggesting their reporting practices are honorable,” said Komorn.
Statewide, as crime labs continue to report THC and marijuana in ways that many call controversial, the decision now rests in the judge’s hands. It’s a decision that could potentially reopen hundreds of cases across Michigan.
Meanwhile, recently passed legislation now legalizes medical marijuana patients and caregivers use of marijuana extracts like oils and edibles. The defense argued the lawsuit is moot in part due to this, however the plaintiffs’ attorneys stand firm that people continue to be unlawfully arrested, charged, and prosecuted for possession of extracts due to the labs’ reporting policy.
OTTAWA COUNTY, Mich. – Medical marijuana is a controversial, sometimes sticky issue, especially in Michigan. Max Lorincz is a father from Spring Lake who is fighting for his right to use medical marijuana, and get his son back. He’s a card-carrying patient, but was charged with a felony, after a single smear of oil was found in his home. After Lorincz’s probable cause hearing has left him waiting for a decision from a judge. Since seeing FOX 17’s coverage of […]
SPRING LAKE, Mich. – The defense representing a Spring Lake father facing a felony marijuana charge is accusing Michigan State Police Forensic Science Division crime labs of misreporting marijuana intentionally. It’s an allegation with statewide implications. FOX 17 first reported Max Lorincz’s case in February: He’s a card-carrying medical marijuana patient. He was charged with felony possession of synthetic tetrahydrocannabinol (THC) for having a smear amount of butane hash oil (BHO). “If nobody stands up for this and it just […]
OTTAWA COUNTY, Mich. – First uncovered by FOX 17, more on an alleged scandal in how state crime labs are testing and reporting marijuana, namely marijuana by-products with no visible plant matter, as felonies. We first brought you the case of an Ottawa County father, Max Lorincz, who was slapped with a felony after he refused to plead guilty to a misdemeanor marijuana possession charge, as he is a medical marijuana card-carrying patient. Now he faces the felony charge of […]
DEWITT, Mich. – A former director of Michigan State Police Forensic Science addressed the serious allegations FOX 17 uncovered, which accuse the Attorney General’s office and state prosecutors of influencing state police crime labs to falsely report marijuana; essentially turning misdemeanors into felonies. Attorney Michael Komorn, representing an Ottawa County defendant, claims forensic scientists are taking directives to report marijuana products ambiguously. In cases were marijuana plant material is not visible, MSP crime labs are reporting THC in waxes and […]
GRAND RAPIDS, Mich. – First on FOX 17, we broke serious allegations that state police crime labs are being told to falsely report marijuana test results. This is resulting in misleading lab reports that an attorney claims creates felonies without real proof. Attorney Michael Komorn believes a recent policy change in the way Michigan State Police forensic science crime labs report marijuana may have led to years of wrongful convictions. Komorn called this a “perversion of science,” and “crime labs […]
GRAND RAPIDS, Mich. – Big questions are still looming over the controversial Michigan State Police Forensic Science Division marijuana reporting policy change: it’s accused of ambiguous crime lab reporting leading to misdemeanor pot charges trumped for synthetic-THC felonies. Tuesday MSP-FSD officials responded to FOX 17’s investigation: officials stated they stand by their policy change, but they failed to address some of our biggest questions. Last month, FOX 17 was the first to show you emails accusing the crime labs of […]
GRAND RAPIDS, Mich. — At least three attorneys filed federal complaints Tuesday against the Michigan State Police Forensic Science Division for allegations of serious negligence or misconduct, and to contest grant money the crime labs received this year. However, officials with both the MSP and the Michigan Attorney General’s Office told FOX 17 their agencies are not conducting investigations into these allegations. Each complaint filed Tuesday was issued to the National Institute of Justice, Office of Investigative and Forensic Sciences’ […]
OTTAWA COUNTY, Mich. – After 16 months of a criminal and family court battle, an Ottawa County Circuit Court Judge dismissed wrongful felony charges against a Spring Lake father and card-carrying medical marijuana patient for having “synthetic THC.” Friday Max Lorincz was in court for multiple hearings regarding his criminal case, after he was charged with a two-year felony for what the Michigan State Police crime lab depicts as “synthetic THC.” Judge Edward Post ruled that the prosecution did not […]
LANSING, Mich. — Now that testing from more than 10,000 shelved rape evidence kits in Wayne County is complete, the Michigan State Police crime labs plan to begin test more than 1,800 untested kits from around the state. In 2009 Wayne County Prosecutor Kym Worthy found 11,341 sexual assault evidence kits in an abandoned Detroit crime lab that closed in 2008. Thousands of DNA samples and possible convictions sat collecting dust. Many like Defense Attorney Michael Komorn call this a […]
SPRING LAKE, Mich. — After 18 months, a Spring Lake family’s son is out of foster care and reunited with his parents. Yet the fight to be together, through court battles and serious drug charges despite being card-carrying medical marijuana patients, still haunts them. Thursday, Max Lorincz’s son Dante, 6, picked out his favorite toys from a basket in the family’s living room, handing one to FOX 17 saying, “this is my dad’s favorite.” Piece by piece, Max and his […]
MICHIGAN – Seven-year-old Ryan Powers could smoke marijuana in the comfort of his own home and have full protection under the Michigan Medical Marijuana Act, but, while he doesn’t smoke marijuana, he needs a special blend of cannabis oil to keep him out of the hospital. However, cannabis oil doesn’t fall within any provisions under the act. Gray areas in Michigan’s Medical Marijuana Act are making it hard for families to get the medicine they need. Ryan’s parents, Jim and […]
DETROIT — Attorneys filed a federal class action lawsuit against the Michigan State Police crime labs this week, claiming its current marijuana reporting policy violates due process and Fourth Amendment rights and demanding it be thrown out for good. This suit would have statewide impact, directly affecting the some 180,000 registered medical marijuana patients and anyone caught with marijuana in Michigan. Attorneys Michael Komorn and Tim Daniels filed the suit Tuesday with the U.S. District Court for the Eastern District […]
DETROIT, Mich. — A judge on Wednesday heard arguments in a federal class action lawsuit filed by medical marijuana patients and caregivers against several Michigan law enforcement and crime lab officials. The suit, filed in June, claims that because of false lab reports, prosecutors are charging people with felonies without proof, illegally arresting them and seizing assets. Four patients and caregivers are suing the directors of the Michigan State Police, their crime labs and the publicly-operated Oakland County lab and […]
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 takenin 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.
