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 states that legalized medical marijuana, U.S. hospitals failed to see a predicted influx of pot smokers, but in an unexpected twist, they treated far fewer opioid users, a new study shows.
Hospitalization rates for opioid painkiller dependence and abuse dropped on average 23 percent in states after marijuana was permitted for medicinal purposes, the analysis found. Hospitalization rates for opioid overdoses dropped 13 percent on average.
At the same time, fears that legalization of medical marijuana would lead to an uptick in cannabis-related hospitalizations proved unfounded, according to the report in Drug and Alcohol Dependence.
As Doctors See Benefits of Medical Marijuana Treatments for Seniors, Calls for Changes in Policy
“Instead, medical marijuana laws may have reduced hospitalizations related to opioid pain relievers,” said study author Yuyan Shi, a public health professor at the University of California, San Diego.
“This study and a few others provided some evidence regarding the potential positive benefits of legalizing marijuana to reduce opioid use and abuse, but they are still preliminary,” she said in an email.
Dr. Esther Choo, a professor of emergency medicine at Oregon Health and Science University in Portland, was intrigued by the study’s suggestion that access to cannabis might reduce opioid misuse.
“It is becoming increasingly clear that battling the opioid epidemic will require a multi-pronged approach and a good deal of creativity,” Choo, who was not involved in the study, said in an email. “Could increased liberalization of marijuana be part of the solution? It seems plausible.”
However, she said, “there is still much we need to understand about the mechanisms through which marijuana policy may affect opioid use and harms.”
An estimated 60 percent of Americans now live in the 28 states and Washington, D.C. where medical marijuana is legal under state law.
Meanwhile, the opioid epidemic – sparked by a quadrupling since 1999 in sales of prescription painkillers such as Oxycontin and Vicodin – kills 91 Americans a day.
Shi analyzed hospitalization records from 1997 through 2014 for 27 states, nine of which implemented medical marijuana policies. Her study was the fifth to show declines in opioid use or deaths in states that allow medical cannabis.
Sessions: ‘We Don’t Need To Be Legalizing Marijuana’ 1:15
Previous studies reported associations between medical marijuana and reductions in opioid prescriptions, opioid-related vehicle accidents and opioid-overdose deaths.
In a 2014 study, Dr. Marcus Bachhuber found deaths from opioid overdoses fell by 25 percent in states that legalized medical marijuana.
Since last year, when New York rolled out its medical marijuana program, Bachhuber has included cannabis in a menu of options he offers his patients who suffer chronic or severe pain from neuropathy and HIV/AIDS, he said in a phone interview. Bachhuber, a professor at the Albert Einstein College of Medicine and Montefiore Medical Center in the Bronx, was not involved in the new study.
Many of Bachhuber’s patients ask for help quitting highly addictive opioids, and some have used marijuana to taper off the prescription painkillers, he said.
Nonetheless, a 1970 federal law puts cannabis in the same category as heroin, Schedule 1 of the Comprehensive Drug Abuse Prevention and Control Act, and finds it has no medicinal value. Consequently, doctors can only recommend, not prescribe, marijuana, and physicians who work for the federal government cannot even discuss the weed.
Federal prohibition also has led to severe limitations on marijuana research.
In January, a National Academies report found conclusive or substantial evidence that cannabis can effectively treat chronic pain, chemotherapy-induced nausea and spasticity. The report, written by an independent panel of medical experts, found no evidence of cannabis overdose deaths.
It did, however, find links between cannabis use and an increased risk of vehicle accidents as well as the development of schizophrenia or other psychoses, particularly among the most frequent users.
Bachhuber lamented the dearth of research on the best ways to use marijuana as medicine.
“We have information that it works based on the National Academies’ report,” he said. “But we don’t know who it works best for, at what dosage, for how long.”
Last week, U.S. Attorney General Jeff Sessions, the nation’s top cop, reiterated his concerns about marijuana and heroin, an illegal opioid.
“I am astonished to hear people suggest that we can solve our heroin crisis by legalizing marijuana,” he told law enforcement officers in Virginia, “so people can trade one life-wrecking dependency for another.”
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.
43rd District Court Judge Robert Turner says it is one of the worst pieces of legislation he has ever seen. He made that assessment of the Michigan Medical Marijuana Act (MMA) back in June 2009 when dismissing pot growing charges brought by the Oakland County Prosecutor against Robert Lee Redden and Torey Alison Clark. Last week, the Michigan Court of Appeals affirmed Oakland Circuit Court Judge Martha Anderson’s reinstatement of the criminal charges against Redden and Clark. Now, the accused Madison Heights couple will either have to plead or go to trial. At the time of the raid on the couple’s residence, the Oakland County Sheriff seized 1.5 ounces of pot, some nominal cash, and about 21 small plants. Three weeks prior to the raid, each defendant had submitted to a medical certification exam with Dr. Eric Eisenbud (not making it up) of Colorado (and of the recently founded Hemp and Cannabis Foundation Medical Clinic) and applied for a medical marijuana card pursuant to the MMA. Their cards, however, had not been issued at the time of the raid. At the couple’s preliminary examination before Judge Turner, the prosecutor argued that: a) the defendants were required to abstain from “medicating” with marijuana while their applications to the State of Michigan’s Department of Community Health were pending; and b) the defendants did not have a bona fide physician-patient relationship with Dr. Eisenbud. Judge Turner indicated that the MMA was confusing relative to what constituted a reasonable amount of marijuana. The defendants in this case were found with an ounce and a half; the MMA allows 2.5 ounces. Judge Turner made the following ruling:
For that reason, I believe that section 8 entitles the defendants to a dismissal, even though they did not possess the valid medical card, because section 8 says if they can show the fact that a doctor believed that they were likely to receive a therapeutic benefit, and this doctor testified to that. And Dr. Eisenbud is a physician licensed by the State of Michigan. And that’s the only requirement that the statute has. You don’t have to be any type of physician, you just have to be a licensed physician by the State of Michigan.
So, based on that, I find section 8 does apply. And I believe I’m obligated to dismiss this matter based on section 8 of the statute.
Under the applicable court rules, the prosecutor appealed the district court dismissal to the Oakland Circuit Court. In reversing her district court counter-part, Judge Anderson held that Judge Turner improperly acted as a finder of fact in dismissing the case. Judge Anderson also questioned whether the couple could avail themselves of the MMA’s affirmative defenses at all, due to their purported failures to comply with the provisions of the act; i.e. keeping the pot segregated and locked-up, and waiting until they received their cards from the Department of Community Health prior to growing their pot. At the time of the Madison Heights bust, however, the couple could not have received marijuana cards because the DCH had not started issuing the cards. To date, almost 30,000 certifications have been issued. In their opinion last week affirming Judge Anderson, the Court of Appeals held that the MMA’s affirmative defenses were available to defendants even though they did not have their cards at the time their pot was confiscated. The Court of Appeals held against defendants, however, on the basis that, at the time of their preliminary examination in district court, their affirmative defense under the MMA was incomplete and thus created fact questions. The Court found the following fact issues to be unresolved at the conclusion of the exam: the bona fides of the physician-patient relationship; whether the amount of marijuana found in the residence was “reasonable” under the Act; and whether the marijuana was being used by defendants for palliative purposes, as required by the Act. The most interesting thing about the Court of Appeals’ Redden decision is the scathing concurring opinion of Judge Peter D. O’Connell. Judge O’Connell wrote separately because he would have more narrowly tailored the affirmative defenses available in the MMA, and because he wished to “elaborate” on some of the general discussion of the Act set forth in the briefs and at oral argument. Elaborate he did. Judge O’Connell’s 30-page opinion first notes that the possession, distribution and manufacture of marijuana remains a federal crime and further notes that Congress has expressly found the plant to have “no acceptable medical uses.” In what will undoubtedly become a classic line from his opinion, Judge O’Connell writes, “I will attempt to cut through the haze surrounding this legislation.” The judge is skeptical that folks are really using pot to “medicate” and suspects that they are using the plant for recreational purposes. He also takes note of the poor quality of the legislation to the extent that it conflicts with other provisions set forth in the Health Code. Judge O’Connell next takes a tour de force through the legislative history of the MMA. Here, we learn that the act was based on model legislation proposed by lobbyists known as the Marijuana Policy Project of Washington D.C. The group advances both the medicinal and recreational uses of marijuana. “Confusion”, and lots of it, is how Judge O’Connell views the MMA. In one of the many footnotes to his opinion, the Judge warns against all marijuana use until the score is settled, once and for all, by the Michigan Supreme Court:
Until our Supreme Court provides a final comprehensive interpretation of this act, it would be prudent for the citizens of this state to avoid all use of marijuana if they do not wish to risk violating state law. I again issue a stern warning to all: please do not attempt to interpret this act on your own. Reading this act is similar to participating in the Triwizard Tournament described in Harry Potter and the Goblet of Fire: the maze that is this statute is so complex that the final result will only be known once the Supreme Court has had an opportunity to review and remove the haze from this act.
Euan Abercrombie, 1st year student at the Hogwarts school would probably remark; “Wow”. For their part, the criminal defense bar, commenting via listserv, have basically gone wild over the concurring opinion, with its multiple web site references and pictures of marijuana advertisements. The consensus among the defense bar, however, is that the majority opinion is correct and that Judge Anderson, at the end of the day, got it right; Redden was not the cleanest case to dismiss under the Act. Finally, it seems that the Oakland County Sheriff and Prosecutor correctly anticipated last week’s Court of Appeals’ decision. A few weeks prior to the issuance of the Redden decision, they conducted a series of dispensary raids, ruffling tons of feathers along the way. For some preliminary guidance, we have prepared a legal guide for the MMA for those seeking to use marijuana for legitimate palliative purposes under the Act. Take note, however, that at least one appellate jurist would have folks managing chronic “pain” with prescription meds until the medical marijuana mess is sorted out by our Supreme Court.
Monday, September 20, 2010
April 2011 Update: As we’ve warned our readers, and as Judge O’Connell warned in his opinion, marijuana possession remains a federal crime. This week, the feds raided a warehouse-style dispensary in Commerce Township. The law enforcement action is covered in this article in the Oakland Press.
