His lawyers say he’s the innocent victim of illegal search and seizure aimed at medical-marijuana users. Police and prosecutors beg to differ
Donny Barnes said he just wants to be a regular guy.
He just wants to run his small businesses scattered around Oakland County. Just wants to hang out with his family at their split-level home on a woodsy street. And just wants to keep using medical marijuana for calming the neck and shoulder pain that Barnes said has plagued him ever since he was in a snowboarding accident at age 19.
But a drug bust in 2014 “turned my life upside down,” said Barnes, 41, of Orion Township. Police seized his property, shutting down his antique resale and spyware businesses, and charged him with possessing more than 100 pounds of marijuana, which Barnes and his lawyers argued didn’t belong to him.
This month, after two years of legal battles, Barnes’ lawyers claimed what they called a rare victory against the Oakland County Prosecutor’s Office, widely known for its aggressive prosecutions of medical-marijuana cases; and against the confiscatory tactics of OAKNET, the county’s much-feared Narcotics Enforcement Team.
Oakland Circuit Judge Denise Langford Morris dismissed a criminal charge against Barnes — marijuana possession with intent to distribute — and she ruled that police had failed to establish probable cause for raiding Barnes’ house, his office and warehouse.
Ecstatic at the ruling early this month, Barnes’ lawyers said it was a sign that times are changing — that a Michigan judge, even in such a conservative bastion as Oakland County, refused to continue waging the discredited war on drugs against one of Michigan’s medical marijuana users.
Yet, Oakland County law-enforcement officials said Barnes merely got lucky with a lenient judge and that, on appeal, the tables would be turned.
A county sheriff’s spokesman said that detectives had indisputable evidence of Barnes having been a big-time marijuana dealer, one who’d tried to hide his illegal activity under the cloak of medical marijuana while overseeing the sale of plastic baggies of marijuana to total strangers — a violation of the state law that allows “transfers” of the medicinal drug but only from a state-registered “caregiver” to that person’s five registered “patients.”
The spokesman said that nothing about the ruling would change the tactics of Oakland County’s drug investigators. And the prosecutor’s office said it decided last week to appeal.
The outcome of the appeal could decide not only Barnes’ fate but also whether his case becomes a landmark ruling that aids others in similar circumstances.
It will be argued in a year when Michigan could pivot toward more tolerance of the drug, or the state could adopt even tighter restraints under a Trump administration whose top law enforcer is the notoriously anti-marijuana Attorney General Jeff Sessions.
And the appeal will occur in a year that began with Gov. Rick Snyder signing a bill that gives limited protections to citizens facing civil forfeiture; they no longer must pay a bond of 10% of the value of their seized property to challenge the forfeiture in court. When Snyder signed the bill in early January, both sides of the political spectrum in Michigan — both the conservative/Libertarian Mackinac Center for Public Policy and the liberal American Civil Liberties Union of Michigan — called for more protections.
Outside Michigan, in 12 other states, law enforcement must get a criminal conviction before a suspect forfeits property, and in two states — New Mexico and Nebraska — civil forfeiture is altogether banned, Jarrett Skorup, spokesman for the Mackinac Center, said in the news release.
It was late November 2014 when police shook up what Barnes said was his tranquil lifestyle.
“They even took the Christmas presents I had wrapped for my kids,” Barnes said.
Heavily armed police in masks seized his family’s cars as well as the business computers, tools and considerable inventory of his several trades, and took the contents of several bank accounts including one belonging to his mother. That scenario is a familiar one around Michigan, and especially in Oakland County, where authorities are notorious among marijuana users for being merciless to those accused of skirting Michigan’s medical marijuana act.
Countless defendants in such cases, lacking the money to mount aggressive legal defenses, have been forced to plea bargain, to give up their possessions and accept jail or prison sentences as well as pay fines said David Moffitt a Bingham Farms lawyer.
One of two attorneys defending Barnes. Because his family “has significant resources,” Barnes was able to fight back and win the dismissal, Moffitt said.
This ruling “sends a strong message that in appropriate procedures on the part of police and prosecutors will result in dismissal. To have an Oakland County judge dismiss search warrants for faulty procedures is a game-changer in the state because everyone looks at Oakland County for their legal leadership on key issues.
“What this judge said was that you can’t just kick down doors and seize people’s property without having good reason to do so,” he said.
The same judge, after reviewing a lengthy brief submitted by Barnes’ attorneys, allowed him in a ruling last fall to use medical marijuana while out on bond “for a very demonstrable medical need,” instead of the opioid painkilling pills that caused him dangerous side effects, Moffitt said.
Getting a judge’s approval to use the drug as a bond condition is rare enough, but Moffitt said he was thrilled that Langford Morris wrote a detailed opinion justifying her circuit court ruling, making it precedent-setting for the state, he said.
One strikingly unfair tactic of Oakland County authorities is to arrest a medical-marijuana user, seize property “and then not even file charges if the defendant doesn’t contest the forfeiture — that’s become a standard approach there,” Moffitt added. Barnes wasn’t arrested until 14 months after the raids, seemingly not until he “aggressively challenged and contested the forfeiture case” in a civil case completely separate from his criminal case, his lawyer said.
“Both Mr. Barnes and I believe that the Oakland County sheriff’s department is protecting us every day, but I think they must agree that not everything they do is done perfectly in every case, and this is one of those cases,” said Moffitt, who is a former Oakland County commissioner from Farmington Hills.
Medical-marijuana cases can be complex, said Oakland County Undersheriff Mike McCabe. And so, there was nothing odd or unfair about how long detectives took to investigate before Barnes was arrested, he said. “With the sensitivity of these cases, the prosecutor goes over them with a fine-tooth comb” before approving arrest warrants, he said.
The sheriff’s and prosecutor’s offices have taken strong and specific issue with the dismissal of charges against Barnes. Among his small-business activities was a monthly free magazine called The Burn, whose masthead listed as publisher “Donald Barnes III.” Each edition was loaded with full-color ads, the most prominent ones being those for Metro Detroit Compassion Club, a facility open six days a week at the same address in Waterford Township as Barnes’ magazine
.
Among the come-ones for the Metro Detroit Compassion Club? “All meds locally grown … Providing our members only the best … We now accept valid out-of-state medical cards.”
That line refers to cards issued by numerous states, including Michigan, showing that someone is approved to use medical marijuana although not approved to buy medical cannabis from just anyone in Michigan except under the state’s tightly controlled system that ties caregivers to five so-called and only five “patients.”
So, when undercover informants of the Oakland County Sheriff’s Office were able to buy medical marijuana last year four times at the Metro Detroit Compassion Club, detectives linked that wrongdoing to Barnes, who was listed as the “resident agent” on the incorporation papers of the nonprofit club.
That’s when they decided to burst into the magazine’s offices, as well as into the compassion club at the same address where they found about two pounds of marijuana, and into a warehouse Barnes owned that was full of marijuana plants and more than 100 pounds of marijuana stored in refrigerators, as well as into Barnes’ rambling modern house that held about four pounds, McCabe said.
Did all of the marijuana belong to Barnes? If the case goes to trial, prosecutors will show that much of it did and the motive was to sell the drug for profit, McCabe said. At the warehouse, “the marijuana was in small baggies in refrigerators,” he said.
As for the nonprofit compassion club, it constituted a dispensary — a retail outlet for selling marijuana, McCabe said. Even though Detroit is said to have more than 100 dispensaries, operating mostly without interference by the Wayne County Prosecutor’s Office, Oakland County authorities abide by the view of Michigan Attorney General Bill Schuette, who has declared dispensaries illegal in Michigan that will soon change, but it hasn’t yet, McCabe said.
Dispensaries are going to be legal in Michigan, through a new law enacted last year, “but not until at least early 2018 — that’s what we’ve been told by people in Lansing; that’s the soonest anybody can get a license to operate one,” McCabe said.
A top attorney at the Oakland County Prosecutor’s Office was adamant about not dropping Barnes’ case.
“We felt that the evidence rose to the level showing that Mr. Barnes was violating state law,” said Paul Walton, Oakland County’s chief assistant prosecutor.
The judge “made the statement that Mr. Barnes was simply an officer of the corporation, but there’s every reason to believe that he had significant involvement, if not outright ownership,” in the dispensary masquerading as a nonprofit club, Walton said.
So,was the ruling was a victory for medical-marijuana users across Michigan, as Barnes’ attorneys insist? Or just a temporary setback to the law-enforcement establishment in Oakland County, standard bearers for a rigid approach to users and distributors of medical marijuana?
Only time, and Michigan’s higher courts, will tell.
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.
OAKLAND COUNTY, Mich.– The owner of an Oakland County medical marijuana dispensary said he’s been unfairly targeted by police in the form of raids and civil forfeitures.
Meanwhile, police said they’re just enforcing the law.
The case sits at the forefront of the fight to legalize marijuana in Michigan.
Investigators close to the case said Donald Barnes is a marijuana dealer hiding behind medical marijuana laws, but Barnes said the dispensary raided by police is a nonprofit that he has no ownership in. The legal battle has gone on for almost three years, and Barnes’ money and property is still tied up in a forfeiture battle.
Barnes insists he is the victim of overzealous police.
“It was two days before Christmas, and we started Christmas shopping already,” Barnes said. “They seized the Christmas gifts.”
He claims officials wrongfully raided his business and seized pot, property and bank accounts.
“They seized personal assets, not just my business bank accounts, but they also seized stuff from my home and my personal properties,” Barnes said.
Barnes was eventually given criminal charges.
“They arrested me and told me I was being charged with selling marijuana because I owned a dispensary,” Barnes said.
But police told a different story. They stand behind the raids, forfeiture and criminal charges, saying it wasn’t a medical marijuana operation for the sick but a large-scale pot-for-profit operation.
The two sides ended up in the courtroom, where Barnes scored a victory.
“In this case, the Oakland County Circuit Court, I think, called the Sheriff’s Department on their tactics and pointed out that they clearly had no justification to do what they did to Mr. Barnes or his business,” attorney David Moffitt said.
Moffitt said when the judge invalidated the search by police and dismissed the criminal charges against Barnes, it sent a strong message and should convince police to give Barnes his money and property back.
“You know, if you go around and you frighten people in this fashion and take their assets and tell them (that) if they just let that go then they won’t be prosecuted,” Moffitt said. “If it weren’t being done by people with badges, it would be called extortion.”
Prosecutors and police said the judge’s ruling was wrong. They’re appealing, so the controversy is far from over.
“I mean, this is Oakland County, one of the richest counties in the country,” Barnes said. “There’s not too many people that are going to be able to push them around. They push people around.”
A judge has ruled that $10,000 seized from Barnes be returned to him. A hearing to resolve the rest of the forfeited property was adjourned Wednesday and moved to August.
In some states, property cannot be forfeited until a person is convicted, but in Michigan, the property is taken and returned if a person is found not guilty.
Copyright 2017 by WDIV ClickOnDetroit – All rights reserved.
Donald Barnes says police unfairly seized assets
By Kevin Dietz – Reporter , Derick Hutchinson Posted: 6:01 PM, April 05, 2017Updated: 6:01 PM, April 05, 2017
In the annals of wrongful convictions, there is nothing that comes close in size to the epic drug-lab scandal that is entering its dramatic final act in Massachusetts.
About 23,000 people convicted of low-level drug crimes are expected to have their cases wiped away next month en masse, the result of a five-year court fight over the work of a rogue chemist.
Annie Dookhan was arrested outside her home in Franklin, Massachusetts, in 2012. Bizuayehu Tesfaye / AP, file
“It’s absolutely stunning. I have never seen anything like it,” said Suzanne Bell, a professor at West Virginia University who serves on the National Commission of Forensic Science. “It’s unbelievable to me that it could have even happened. And then when you look at the scope of the number of cases that may be dismissed or vacated, there are no words for it.”
The dismissals will come in the form of filings from seven district attorneys ordered by the Massachusetts Supreme Judicial Court to decide who among 24,000 people with questionable convictions they can realistically try to re-prosecute.
Their answer, due by April 18, is expected to be “in the hundreds,” a spokeswoman for Middlesex County District Attorney Marian Ryan said this week. An exact number was not available because the prosecutors are still working through the list, the spokeswoman, Meghan Kelly, said in an email.
The prosecutors didn’t want the scandal to end like this. They fought for a way to preserve the convictions, and leave it to the defendants to challenge them.
Civil rights groups and defense lawyers argued for all the cases to be dropped, saying that was the only way to ensure justice.
The state’s high court chose its own solution, ruling in January that district attorneys should focus on a small subset of cases it wanted to retry, and drop the rest.
It has taken five years to get to this point, longer than it took to discover, prosecute and punish the chemist, Annie Dookhan. She worked at the William A. Hinton State Laboratory Institute in Boston for nearly a decade before her misconduct was exposed in 2012. She admitted to tampering with evidence, forging test results and lying about it. She served three years in prison and was released last year.
By then, most of the people Dookhan helped convict — most of whom pleaded guilty to low-level drug offenses based on her now-discredited work — had finished their sentences.
Is not entirely clear why Dookhan, a Trinidadian immigrant mother, felt compelled to change test results on such a massive scale. She was by far the lab’s most prolific analyst, a record that impressed her supervisors but also worried her co-workers — a red flag that went overlooked for years. She seemed driven to stand out, even if it mean lying, former colleagues have said. She also maintained friendly relationships with prosecutors, even though her role was to remain objective.
Many of those convicted through Dookhan’s work likely did commit the offenses, but many did not, defense lawyers say. All of them are now burdened with dubious convictions that have made it difficult to find jobs and housing or to obtain student loans, the lawyers say. Some defendants were convicted of more serious crimes, and the drug convictions were used to stiffen their sentences. Non-citizens have been threatened with deportation.
Civil rights advocates say the case has exposed the folly of aggressive enforcement of low-rung drug offenders, many of whom are addicts in need of treatment. “It’s a soup-to-nuts indictment of the war on drugs,” said Matthew Segal, legal director of the American Civil Liberties Union of Massachusetts, whose lawsuit led to the supreme court’s ruling. “These scandals happen around the country because our war on drugs is based on cutting corners.”
The reliance on forensic science in the criminal justice system has improved policing and prosecutions, but the misuse of science has also fueled wrongful convictions, researchers say. Drug labs play a distinct role in that machinery.
Lab scandals have undermined thousands of convictions in eight states in the past decade, according to data maintained by the National Association of Criminal Defense Lawyers. Critics say forensic chemists feel a duty to help prosecutors rather than remain neutral. And they point out that many labs — including Hinton when Dookhan worked there — lack professional accreditation or proper protocols to prevent and detect misconduct. Some of her superiors have lost their jobs for failing to notice or report her misdeeds.
“This drug lab scandal is another example of why the criminal justice system needs to reform its approach to forensic science,” said Dan Gelb, a Boston attorney who helped write an amicus brief on the Dookhan case for the National Association of Criminal Defense Lawyers. “Labs shouldn’t be an extension of law enforcement.”
Because of the system’s reliance on plea bargains to keep cases moving, defendants often don’t have a chance to challenge results from drug labs, Bell added.
That’s become a big point of discussion at the National Commission of Forensic Science, she said. But the commission, which was formed by the U.S. Department of Justice in 2013, is facing an uncertain future, with no clear message from the Trump administration if its work will continue to be funded, Bell said.
The Dookhan case awakened Massachusetts to the crisis, Bell said.
But the end of the Dookhan saga will not bring the end to Massachusetts’ problems.
That’s because it is dealing with a second scandal, at a second lab, this one the result of a chemist who admitted to doing drugs — including an array of substances submitted as evidence — while on the job.
Thousands of convictions in that case are now in doubt.
