A case alleging two Livingston County men operated a collective marijuana-grow operation is on hold while their attorneys appeal a District Court judge’s decision not to dismiss felony charges.
In October, Judge Carol Sue Reader dismissed multiple manufacture marijuana counts lodged against Darryl Scott Berry, of Howell Township, and co-defendant Jeffrey Allen Michael, of Fowlerville, after learning Michigan State Police destroyed more than 500 marijuana plants without a judge’s order. She reversed her ruling March 3, prompting the defense attorneys on Wednesday to request a stay in the case to appeal.
Officers executed search warrants at five properties in Livingston County where they seized an estimated 545 plants as well as about 15 pounds of marijuana, 7 pounds of processed marijuana and suspected marijuana edibles, and more than $195,000 in cash.
The state’s attorney general’s office objected, saying the defendants are “not harmed” by proceeding with the preliminary exam Wednesday, but Reader noted she has a duty to protect a defendant’s rights.
The judge, however, noted that she stands by her opinion that it’s not a medical marijuana case, which was the state’s argument when it asked Reader to reconsider her earlier decision that dismissed the charges.
Defense attorney Michael Komorn, who represents Berry, said the attorney general’s office does not get to decide whether it’s a medical marijuana case because his client’s doctor has already made that determination.
Attorney Shyler Engel, who represents Michael, said the case should be dismissed because the evidence has been destroyed.
As a result, Engel argues, he cannot effectively assert what is known as the Section 4 defense of the Michigan Medical Marihuana Act.
That section gives qualified, registered patients broad immunity from arrest and prosecution.
“I want to tell the court there was only this number of plants but because they’ve been destroyed, I’m unable to do that,” Engel said. “That’s why this case must be dismissed.”
Assistant Attorney General Dianna Collins told the court the state has clippings from each of the plants seized.
Engel countered that the state’s attitude of “just trust us” that the evidence destroyed was a marijuana plant is inappropriate.
Collins further argued that the defendants “were not operating within the medical marijuana” statute.
Contact Livingston Daily justice reporter Lisa Roose-Church at 517-552-2846 or lrchurch@gannett.com. Follow her on Twitter @LisaRooseChurch.
CLIO, MI – The attorney for the owner of a medical marijuana facility faced with the possibility being padlocked for a year questions why prosecutors are trying to have the business declared a nuisance.
Attorney Michael Komorn said he doesn’t understand why prosecutors are trying to close the Clio Caregiver Connection as a nuisance even though the community hasn’t come forward with complaints.
“It appears that the main allegation regarding ‘a nuisance’ comes from the drug task force and not the local police agency or community leaders or citizens,” Komorn said.
Genesee County Prosecutor David Leyton filed a nuisance ordinance violation March 3 against the business after an investigation by the Flint Area Narcotics Group alleged the business at 105. N. Mill St. was acting outside of the state’s medical marijuana act.
FANG began its investigation into the facility Sept. 22, after receiving information that the facility was acting as a dispensary, according to the violation complaint.
“It appears as if FANG and FANG alone are the persons complaining of the behavior and will testify about that behavior justifying any injunctions,” Komorn said. “Instead, FANG warrants an injunction for their behavior, and the complaint of nuisance in this case.”
State law allows officials to padlock a property for up to a year over complaints of drug dealing.
Three separate controlled purchases of marijuana were conducted at the business, according to the complaint. The purchaser was a medical marijuana patient, but no person present at the facility was the registered caregiver for the buyer, the complaint claims.
State law allows individuals to serve as caregivers for medical marijuana patients, allowing them to possess up to 2.5 ounces of useable marijuana or 12 marijuana plants for each of their registered patients. Caregivers are allowed to have up to five registered patients.
Search warrants were obtained for the facility and executed Feb. 18. Officials claim they discovered multiple jars of marijuana in cases listed for sale, edible marijuana items, THC wax, suspected psychedelic mushroom cultivation, suspected LSD tabs in the business owner’s vehicle, 12 marijuana plants and $860, according to the complaint.
Komorn also took issue with Leyton filing the complaint, claiming it contradicts prior statements from the prosecutor.
“The restraining order action seems absurd in light of David Leyton’s declaration that he will only review cases where the ‘community’ brings it to him or his office,” Komorn said.
Leyton said Komorn took his statements out of context, and said he would review any case brought to him by law enforcement.
A temporary restraining order was issued this month against the business by Genesee Circuit Judge Archie Hayman after authorities alleged the business continued operating even after the warrants were executed.
On Monday, March 28, Hayman agreed to continue the restraining order until a hearing is held on the padlocking of the business.
The business’s owner did not appear in court for Monday’s hearing. His name is not being released because he has not yet been arraigned on the suspected crimes.
The case will return to court April 25 when Hayman will be asked to decide if the business can be padlocked for up to a year.
5.0 stars
Posted by Nathan
November 29, 2016
My family and I hired Michael for a Minor in Possession. He was able to retain my right to use Medicinal Marijuana while on probation and had the frequency of drug alcohol testing redused significantly. He was extremely well put together both in person and practice. He works with a dedicated team that makes every case personal. Phenomenal people all around, We’re very satisfied with their work.
Hired attorney
Hire Michael Komorn-an attorney whose got your back
5.0 stars
Posted by Jamie Lowell
November 12, 2016
Over the years- I have been in a unique position to see arrests, hear extensively about arrests and police encounters, and attend many court hearings concerning cannabis activity.
When I found myself in the position of being charged for crimes concerning cannabis- I knew exactly who to call- attorney Michael Komorn.
I thought that I was charged unfairly- far from home and that I would be trapped into admitting to a crime and suffering consequences for behavior that did not warrant such treatment. Komorn understood the predicament and told me very directly- “I got your back.”
I have witnessed attorney Komorn take on many kinds of cases and defend all kinds of people, Komorn takes more than an active interest. Attorney Michael Komorn understands the fear, the concerns, the uncertainty, and the stress of being charged or suspected of a crime and being faced with the immense burden of the criminal justice system. Komorn will speak the truth and will not “sugar coat” the situation but he truly cares and will offer solace to the accused as well as surrounding family and friends.
When Michael got in front of the judge and interacted with the prosecutor in Roscommon County where my case was heard- it was obvious that they knew that they would not have an easy time pursuing the fines and costs or possible jail time they were seeking.
What started out as a misdemeanor and possibly felony, went to two misdemeanors, which then went to one civil infraction with a small fine.
I hired Michael Komorn to fight for my rights- not to hold my hand through the process of succumbing to a broken system- and that is exactly what he did.
I had two charges in Wayne county. I was facing 6 years in prison. Michael was very informative and reassuring throughout the whole process. I was really nervous at first but, Michael’s attitude and knowledge about the situation made me feel otherwise. He is an amazing lawyer that will fight for you until the end. I would never…
best to keep u out of jail
4.0 stars
Posted by Marshall June 16, 2016
Michael was a serious lawyer who went into court and let the judge know he was serious and the charges brought against me were illegal and shld be thrown out immediately after several back and forth court dates Michael decided it was time to file several motions to see exactly how the warrarnt was ever obtained the prosecution decided it was…
Best around!
5.0 stars
Posted by Lia May 2, 2016
I hired Michael as my lawyer August of 2015 and we finally finished my case April of 2016, throughout the whole process Michael and his team kept me thoroughly updated. I was told not to worry, which is kind of hard, but in the end Michael did everything I asked and to me got the win! Thank you all so much for actually caring about me and making sure I was happy with the outcome!
Amazing Lawyer!!! A+++ Case Dropped & Highly Recommended
5.0 stars
Posted by Jason March 25, 2016
I would like to thank Mr. Komorn for his wonderful service he provides for the people and amazing job he did on my possession of marijuana misdemeanor case. I am a medical marijuana caregiver who was unlawfully raided by lawnet in Livingston county was not arrested and 6 months later got a charge in the mail for 53rd district court. I…
Wouldn’t go with anyone else!
5.0 stars
Posted by Brad March 23, 2016
The last thing anyone wants to deal with is legal trouble. I was worried when I received my case. Michael put me at ease upon first contacting him. Michael fought for me from the second I hired him. He was able to retrieve assets taken from me. He was able to explain to me all of the possible ways we could approach every aspect of the case. He is an…
Komorn Law Wins
5.0 stars
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5.0 stars
Anonymous review posted on December 31, 2015
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Resting now!
5.0 stars
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Doesn’t Jump Ship
5.0 stars
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Insightful, creative, caring
5.0 stars
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When Mr. Komorn engages- it is on! I am so grateful for his expertise and thoughtful consideration for the predicament I and my family were in.
Trying to understand why prosecutors in St. Clair County, Michigan, suddenly decided to drop their case against Ginnifer Hency, a medical marijuana patient and caregiver, and return the property that police seized from her home, I obtained several court documents from Shyler Engel, her appellate attorney.
The documents clarify why prosecutors decided to charge her in the first place, why a judge dismissed the charges, and why the prosecutors appealed that decision. But their avowed reason for withdrawing that appeal—a recent ruling by the Michigan Supreme Court interpreting the Michigan Medical Marihuana Act (MMMA)—makes even less sense in light of these details.
Hency was caught up in a raid of the DNA Wellness Center in Kimball Township by the St. Clair County Drug Task Force on July 28, 2014. Police found six ounces of marijuana in her backpack, which was well within the 15-ounce legal limit for her and the five patients she assists.
But a sheriff’s deputy reported that Hency told him she planned to swap the marijuana with another registered caregiver, Dale Shattuck, for the same amount of a different strain that was more suitable for her patients. The alleged plan for a swap that never actually happened was the basis for accusing her of possession with intent to deliver, since the MMMA does not explicity allow caregiver-to-caregiver transfers of marijuana.
On May 18, after four days of hearings, District Judge David Nicholson dismissed the charges against Hency, concluding that any violation of the law was “de minimis”:
There is sufficient evidence to believe that [Hency] intended to deliver the six ounces of marijuana she had in her backpack…in exchange for a like amount to be delivered to her by Dale Shattuck. There is no evidence that would be admissible against Dale Shattuck that he knew of Hency’s intentions or that he participated in any plan to make such a swap. The court is of the opinion that the violation is de minimis. The sequence would be as follows: Two people each have legal possession of six ounces of marijuana. They trade those amounts so that each now possesses six ounces of marijuana, an amount that would be legally held based on caregiver cards each held and the patient cards assigned to each of them. While arguably the act of exchanging the amounts held would constitute a delivery, the court is of the opinion that under these conditions the mutual delivery was not a change in position such as there would be in an exchange of an amount of marijuana for money or any other tangible asset.
On June 19, St. Clair County Senior Assistant Prosecuting Attorney Amy Stover appealed Nicholson’s decision, arguing that it was an “abuse of discretion.” Engel and Michael Komorn, Hency’s trial lawyer, responded on July 7, arguing that Stover was applying the wrong standard of review. Nicholson’s decision should be reversed only if it was “clear error,” they said, and it wasn’t:
The record reflects that [Hency], if she had even made the statement regarding the exchange, was going to exchange the strain of marijuana for a different strain of marijuana for her registered qualifying patients. Accordingly, she was engaged in medical use under the Act, and her actions were protected. Should the MMMA not specifically permit a delivery or transfer to a non registered and qualifying patient, but it was for the benefit of the registered qualifying patients, then that violation of the MMMA is de minimis.
In her August 4 motion to withdraw her office’s appeal, Stover cited the Michigan Supreme Court’s July 27 decision in People v. Hartwick and People v. Tuttle. But it’s not clear how that decision affected the prosecution’s chances of winning its appeal or prevailing at trial. The ruling dealt with three main issues: a patient/caregiver’s right to a pretrial immunity hearing, the impact of prohibited conduct on the legal status of marijuana-related activities that would otherwise be permitted, and the affirmative defense that is available to unregistered as well as registered patients and caregivers. But the court did not change the criteria for immunity, which are spelled out in the MMMA, and it did not address the legality of caregiver-to-caregiver transfers.
Engel summarizes the sequence of events this way:
District Court judge offers cryptic opinion throwing out Hency’s case. Prosecutor appeals.
I write a reply. Prosecutor doesn’t respond to my brief on appeal. Prosecutor dismisses case first court date after my brief is filed. Between the time my reply is filed and the first date on appeal, Michigan Supreme Court publishes Hartwick/Tuttle. Prosecutor says it compels dismissal. No way.
Stover said her office was reassessing about 20 cases in light of Hartwick/Tuttle. If Hency’s case is any indication, the connection between the reassessment and the Michigan Supreme Court’s decision is pretty tenuous. It seems more likely that the negative publicity surrounding profit-driven raids of medical marijuana patients, which has led to serious talk of forfeiture reform in the state legislature, has encouraged local officials to de-escalate their crackdown.
