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.
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.
Local Attorney Michael Komorn, got the news that the marijuana case against his client was dropped and her property seized would be returned.
Ginnifer Hency and her lawyer, Michael Komorn, got the news early Wednesday morning that the marijuana case against her was dropped, and her property seized through civil forfeiture would be returned.
The Kimball Township woman’s case is one of at least five marijuana cases in St. Clair County that will be dismissed after a state Supreme Court decision last week.
“I’m elated that this part is over,” Hency said. “It’s been a long year.”
St. Clair County Prosecutor Michael Wendling said about 18 cases were on hold while prosecution and defense waited on the Supreme Court decision.
“We reevaluated the files that we had pending and at least five were no longer viable in light of the Supreme Court decision,” Wendling said.
“I think that’s an analysis that prosecutors across the state are undertaking.”
The Michigan Supreme Court ruling last week — its ninth medical marijuana ruling since voters approved the Michigan Medical Marihuana Act in 2008 — clarified when caregivers and users can use their medical marijuana certification as a defense or immunity if charged with a marijuana-related crime.
“We would have to have specific evidence on those items in order to overcome that burden now that we did not have to show before,” Wendling said.
“Several of those cases the evidence isn’t there to do that.”
Wendling said any unresolved civil forfeiture cases connected to those five dismissed cases also will be dismissed, and items seized will be returned.
The four other marijuana cases dismissed include ones against Austin Ray, Ryan Jackson, Thomas Cook and Kevin Lindke, Wendling said.
According to appeal documents from the prosecution, Hency was charged after she allegedly told a Drug Task Force member she had six ounces of marijuana in a locked bag that she intended to exchange for a different strain with another caregiver and give the marijuana to her patients.
Her case was dismissed by visiting District Judge David Nicholson in May after Nicholson found that no crime had occurred after a preliminary examination.
The prosecutor’s office appealed Nicholson’s decision in circuit court. Oral arguments on the appeal were supposed to be heard by Circuit Judge Michael West Wednesday.
“We still feel that that appeal is justified because it was on a different issue,” Wendling said. “But, at the end of the day, if we win that appeal and that case gets refiled, we still have that Supreme Court decision to deal with.”
Komorn said he, co-counsel Shyler Engel and Hency were happy with the dismissal.
“But that does not eliminate the horror of what they’ve had to deal with the last year,” Komorn said.
“It didn’t come easy. We’ve had to fight for a year.”
Komorn said Hency’s family was devastated by the July 2014 raid on their home and Hency has had trouble finding employment because of the pending narcotics charge.
“We’re interested in pursuing damages,” Komorn said.
“This shouldn’t have happened. There shouldn’t have been criminal charges and there certainly shouldn’t have been a forfeiture.”
Hency said authorities seized several items, including a Chevy Impala, two iPhones, an iPad and a ladder, when they raided her home in 2014.
Hency said she appreciated the prosecutor’s decision to dismiss the case “in the interest of justice.” But she said she feels her case isn’t completely finished.
“When I get my stuff back I will consider it over,” Hency said. “There are a whole lot of other cases in St. Clair County that I hope they revisit in light of the (Supreme Court) decision.”
If you or someone you know has been accused of a crime, DUI or Drugged Driving. Call Komorn Law and turn your defense into an offense. Call Now 248-357-2550
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