Michael Komorn is recognized as a leading expert on the Michigan Medical Marihuana Act. He is the President of theMichigan Medical Marijuana Association (MMMA), a nonprofit patient advocacy group with over 26,000 members, which advocates for medical marijuana patients, and caregiver rights. Michael is also the host of Planet Green Trees Radio, a marijuana reform based show, which is broadcast every Thursday night 8-10 pm EST. Follow Komorn on Twitter.
The Fourth Amendment to the United States Constitution protects Americans from unreasonable searches by the government. That means that absent an emergency situation or other legal exception, a police officer must have a search warrant before conducting a search of your person or property.
How a Search Warrant is Obtained
The Fourth Amendment requires that searches be specific and reasonable. That means that a judge will only approve a search warrant if law enforcement is specific as to the items and location it wishes to search. Law enforcement must also prove that probable cause exists that a specific item is located in a specific place.
Whether the warrant gets issued or not is up to the judge’s review. If a judge finds that law enforcement has met its burden of probable cause and has included enough specificity in the request for the warrant, then the judge will issue the search warrant.
The suspect is not present during this proceeding and is not given an opportunity to present his or her argument against the issuance of a warrant. However, in later proceedings the suspect may argue that a search warrant was improperly granted.
When a Search Warrant is Not Necessary
There are a few situations when law enforcement is exempt from obtaining a search warrant. Those situations include:
Consent: Law enforcement can request to enter a person’s home or search a person’s belongings. If the person consents to the search and gives law enforcement permission to conduct the search then a warrant is unnecessary.
Plain View Doctrine: Law enforcement does not need a search warrant to obtain evidence that is in plain sight. For example, if an officer is walking down the street and sees a person with drugs in the park then the officer may arrest that person and keep the drugs as evidence even though a search warrant was not obtained. This exception exists because individuals do not have a reasonable expectation of privacy when they are in plain view.
Emergency Situation: If the police are in pursuit of a felon and follow that alleged felon into a home or other private area – then they do not need a warrant to obtain evidence that is in plain sight when they enter the building.
For example, a police officer may witness a robbery or a crime and begin to pursue the criminal to make an arrest. If the criminal flees and takes refuge in a private residence then the police may follow him and they do not need a search warrant to enter the home nor to collect evidence that is in plain sight or within the reach of the alleged criminal.
Police may also enter a residence without a warrant if they hear a person screaming for help or have reason to believe that a person or property is in imminent danger and that harm would result in the time it would take to obtain a search warrant.
Search Incident to Arrest: Police officers may search the body and immediate surroundings of a person whom they take into custody. The courts have allowed this exception to the search warrant rule in order to protect police officers from people who may have concealed weapons.
Search warrants are the government’s way of balancing an individual’s Fourth Amendment rights with the societal interest in limiting crime and protecting the public. Therefore, the general rule is that a search warrant must be obtained before the police conduct a search but exceptions to that rule exist to protect police officers and society from harm.
Attorney Michael Komorn Speaks Out at the Hash Bash 2015 Rally!
Thank you, it is truly an honor to be here today. This is a special gathering… one that I look forward to every year.
It is an exciting time in the United States, it would appear that there is great momentum amongst us…for a more rational approach to marihuana policy.
As a lawyer, may I suggest…Do not believe everything you read or see!
The MMMA – In November of 2008, Michigan voters passed the Michigan Medical Marihuana Act (mmma). A lot of people don’t realize that more Michiganders voted for the mmma than any other issue, candidate legislation or policy decision in the history of Michigan elections. 3.3 million people declared that the sick, the wounded, and the people that care for them should be taken off the battlefield of the biggest losing war in the history of the world…on the war on marihuana.
Yet, what we have seen instead is a calculated strategy to derail the voter’s intent from the institutions that are truly in control.
This has to stop!
For 6 years across the state of Michigan:
Narcotic drug task forces have become specialized investigative armies finding or creating loopholes in the protections from arrest and prosecution of patient, caregivers and even doctors.
Prosecutors across this state have strategically litigated and courts have supported denying medical marihuana patients the simple right to present a medical marihuana defense to charges alleging marihuana violations. The most clear and unambiguous paragraph in the voters initiative of 2008 specifically decreed that registered and unregistered patients shall have a medical defense to any charges involving marihuana. This decree has been ignored.
Persons have been forced to plead guilty to felonies regarding marihuana or go to trial without being able to mention medical use of marihuana.
This is wrong and has to stop!
No matter what kind of law is passed, no matter how evolved we have become, the institutions charged with enforcing and interpreting the law control the tables.
These intuitions are and should be clearly identified as the enemy of ours and this a concern that we as a community must focus upon for change.
Specifically – The problem is that it is nearly impossible to maintain rational drug policy reform, or even medical marihuana reform, and honor the will of the people when there is no reform for the arcane and mid evil forfeiture laws that currently exists.
The prosecution of persons and the criminalization of marihuana is about big money.
And this must change!
In any courtroom throughout this great state of ours the business of the day remains marihuana cases.
At least 40 percent of the courts dockets are still making up marihuana cases. It may be felony or misdemeanor charges, or probation violations for having tested positive for cannabis.
It is difficult to view cannabis as medicine, or even recreational, when so much revenue is brought into the state from those persons who use marihuana.
This must change!
Forfeiture – In 2014, the state of Michigan reported a net earning of 20 million dollars from forfeiture proceedings.
2014 was the year the media started reporting sheriff departments and other specialized agencies throughout Michigan acquiring military equipment from the department of defense. Begging the question, why do we need military equipment to police our own citizens???
The answer is obvious. We are still at war with families, people and citizens when cannabis is perceived as contraband per se. If we accept the concept that those who use marihuana are the criminals, then it follows we can incarcerate them, charge them money, and fund the police and prison industrial complexes.
The United States is the world’s leader in incarceration with 2.2 million people currently in the nation’s prisons or jails — a 500% increase over the past thirty years!
From 1980 to 2008, the number of people incarcerated in America quadrupled-from roughly 500,000 to 2.3 million people
Today, the US is 5% of the World population and has 25% of world prisoners. 1 in every 31 adults, or 3.2 percent of the population is under some form of correctional control.
Racial Disparities in Incarceration
African-Americans now constitute nearly 1 million of the total 2.3 million incarcerated population
African-Americans are incarcerated at nearly six times the rate of whites
African-American and Hispanics comprised 58% of the prison population. This is a racist policy, it exists all over the the state of Michigan and it is time for our state to call ourselves out.
We can be better! This must change!
In 2014, the Michigan Court of Appeals in a case People v Cunningham. The way courts have been issuing costs and fines was unreasonable and dramatically reduced the way people can be charged fees and court costs.
Then the court lobby decreed that they would lose over $100 million dollars. Legislation was passed to override what the court of appeals had declared was unreasonable and reprehensible.
You may ask yourself… why does the court need to lobby?
You may ask yourself… this is not my beautiful home?
You may ask yourself… this is not my beautiful wife?
You may ask yourself… how did I get here??
This must change!
We gather here today, the first Saturday of April, to recognize the insanity of all of this.
We acknowledge the insanity that Prophet John Sinclair was sentenced to 10 years in prison for 2 stinky joints.
The Michigan Supreme Court ultimately conclude in this case, “That there is no rational basis for cannabis to be scheduled as a schedule 1 control substance and for a short period of time cannabis was de-scheduled. “
Often overlooked in the magic of the Michigan Medical Marijuana Act is the declaration of Michigan voters, in conjunction with the federally funded National Institute of Science, that cannabis has a number of medical benefits in the treatment of debilitating conditions. By virtue of vote, cannabis was removed from its classification of a schedule 1 drug.
The Michigan voters in 2008 echoed the Michigan Supreme Court ruling from 1972, declaring the same as in the People v John Sinclair, and de-scheduled marihuana in Michigan.
Unfortunately, every criminal statute in the Michigan public health code still criminalizes cannabis as a schedule 1 drug.
Let me say that again. Despite 3.3 million Michiganders (63 percent of the voters in Michigan) declaring cannabis is medicine, it remains classified and criminalized as a schedule 1 drug.
Currently, the way in which people are prosecuted for cannabis crimes in Michigan is premised upon the drug being a schedule 1, or having no accepted medical treatment.
This must change!
At the same time, the United States’ 37 president, Richard Millhouse Nixon, while running a burglary ring out of the White House, rejected his handpicked commission after 2 years of independent research (now known as the Schafer Report) concluding that cannabis should not remain as a schedule 1 drug. At that time, The Schafer Report was the most comprehensive study regarding cannabis. After 2 years of study, research concluded that cannabis should not remain as a schedule 1 drug, and to criminalize marihuana would be the equivalent of criminalizing single parent families.
Nixon of course looked at the authors of the report and said, “didn’t you get the memo…the Blacks, the Jews, the Vietnam protesters and the Hippies use cannabis, these are the political enemies. If we criminalize cannabis we can imprison them and remove our competition.”
This is the history of cannabis. It is a racist policy. It is a policy created by a President for political reasons based upon a lie.
This policy has caused more carnage and destruction to families, more pain and suffering, and casualties than anything else in our recent history, and so it remains today.
As a policy… it is immoral, illegal and a complete failure.
This must change!
It is time in America to declare that adult responsible use of marihuana is okay. It is time for America to have an American made industry of cannabis. Thousands of Americans can attest to this fact.
It is time to start treating cannabis as other goods and services.
It should be okay for cannabis users to demand the highest quality cannabis in whatever forms they should choose to ingest. And with as little effort as necessary to acquire it.
We rally for freedom today and I am proud to be a part of this.
I will leave you with a comment. A police officer friend of mine said to me the other day,
“If you put 5 people in a room and give them a case of beer they will start a fight.
If you put the same 5 people in a room and give them a joint they will start a band.”
It is time to stop fighting and time to play some music!
As always, there is so much important material to highlight and share with those who are interested in all of our favorite topics: medical cannabis, cannabis reform, United States citizens’ constitutional protections, the art of lawyering and trial practice, and industrial hemp research and development. The month of April 2015 was exciting and we hope you enjoy some of the highlights.
The 44th Annual Hash Bash of 2015
The first Saturday of April in Ann Arbor is always reserved for Hash Bash. More than 8,000 people showed up for this year’s event. In what has truly turned into a political and freedom rally, this year was no different and the guests and speakers exemplified this spirit. Friend and fellow Cannabis Reform activist Jim Powers and his young son Ryan, a cannabis patient, were the lead off speakers, setting a tone that this was not your momma’s hash bash. Amongst the diversity of speakers were several patients…each telling their miracle stories of how cannabis improved their medical conditions; one even stating it cured their cancer. Political Leaders were in abundance as well. Friend and one of the few politicians anyone can say that they like, Jeff Irwin of Michigan’s House of Representatives was there. In addition, Ann Arbor’s Mayor Sabra Briere, Lansing’s Mayor Virg Bernero, Comedian/Actor/Activist Tommy Chong, and John Sinclair spoke at the event.
Many People probably don’t understand the history and significance of Hash Bash. Hash Bash is an annual event held in Ann Arbor, Michigan, on the first Saturday of April…at high noon on the University of Michigan’s Diag. A collection of speeches, live music, street vending and occasional civil disobedience are centered on the goal of reforming federal, state, and local marijuana laws. The first Hash Bash was held on Saturday, April 1, 1972 in response to the March 9th, 1972 decision by the Michigan Supreme Court declaring the law it used to convict cultural activist John Sinclair for possession of two marijuana joints unconstitutional. This action left the State of Michigan without a law prohibiting the use of marijuana until after the weekend of April 1, 1972.
The John Sinclair case, albeit a 1972 opinion, is still good law in Michigan and one would think would be a good case to rely upon to truly reform the current hypocritical and arcane crimes for the growth, use and possession of marihuana. In the meantime Komorn Law cited and relied upon this case often in our amicus curiae brief we filed before the Michigan Supreme Court in the matters currently pending; People v. Tutttle and People v. Hartwick arguing amongst other things that Marijuana is not and cannot be a schedule 1 controlled substance under Michigan law.
An audio recording of oral arguments before Michigan Supreme Court concerning “People vs. John Sinclair” can be found here People v. Sinclair, 379 Mich. 91 (1972)
Here are some of the compelling findings in that case:
The Michigan Supreme Court has made findings of fact that are relevant here. “It cannot be doubted that the judiciary has the power to determine the true state of facts upon which a (in this case marijuana) law is based.” People v. Sinclair, 379 Mich. 91 (1972) citing Brown v. Board of Education, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873 (1954). The Michigan Supreme Court in Sinclair addressed the issue of the rationality of the State’s marijuana laws and held:
Comparison of the effects of marijuana use on both the individual and society with the effects of other drug use demonstrates not only that there is no rational basis for classifying marijuana with the ‘hard narcotics’, but, also, that there is not even a rational basis for treating marijuana as a more dangerous drug than alcohol.” Sinclair, 379 Mich. at 103. “No physical dependency is produced by use of the drug and, hence, there are no withdrawal symptoms or ‘abstinence syndrome’ when the drug is unavailable to the user. No lethal dose for marijuana has been established… the evidence available concerning marijuana’s effect on psychomotor functions seems to show very little impairment, at least in experienced users. Id. At 107.
There is no reliable scientific evidence demonstrating that chronic psychosis can be caused by marijuana use in dramatic contrast to the American experience with alcohol. The argument that marijuana use causes or contributes to assaultive crime is now largely discredited. Again by contrast, considerable evidence points to a substantial connection between alcohol use and commission of violent crimes. Finally, the ‘stepping stone argument’ that marijuana use leads to use of ‘hard narcotics’ has no scientific basis. Id at 110. (internal citations omitted).
The Michigan Supreme Court went on to hold: “The murky atmosphere of ignorance and misinformation which casts its pall over the State and Federal legislatures’ original classification of marijuana with the hard narcotics has been well documented… We can no longer allow the residuals of that early misinformation to continue choking off a rational evaluation of marijuana… The truth compels us to conclude at the minimum that marijuana has been erroneously classified with the opiates….” Id at 114-15 (emphasis added). Or as a concurring Justice noted, “Possession of a natural growing plant can hardly be malum in se (evil in and of itself). Id at 152. The court reversed Sinclair’s conviction as violative of equal protection because of the irrational classification of marijuana and the cruel and unusual nature of the excessive punishment.
Marijuana is not and cannot be a schedule 1 controlled substance under Michigan law. Thank you John Sinclair.
Another stand out from Hash Bash 2015 was Lansing’s Mayor Virg Benero, who took to the podium and led the crowd in a new version of “Free the Weed.” While standing before what would normally be an unfriendly Ann Arbor crowd, the Lansing Mayor let it be known that he has had a revelation. As he stated to the crowd “I realize now that war on marihuana is a war on people. I realize now that when this crowd chants, “free the weed,” what you are really saying is free the people. So then….will you join me-when I say free the weed, you say free the People.”
Lansing Mayor Virg Benero – Taking a stand on Sanity – Hash Bash 2015
Attorney Michael Komorn – Speaks Out – Hash Bash 2015
Although I didn’t get a chance to get through my entire speech, I have posted a link here to the written version of my Hash Bash 2015 Komorn rant. Also it can be heard here in the PGT rant episode 244
