Public Health Code amended to eliminate forfeiture bond requirements
Public Act 418 of 2016 amended MCL 333.7523(1)(c) of the Public Health Code to eliminate the requirement that a person post a cash bond in order to file a written claim expressing an interest in property that is the subject of a forfeiture notice required by MCL 333.7523(1)(a). All other provisions in MCL 333.7523(1)(c) were unchanged.
Officers are reminded that the written claim must be signed by the claimant and must be filed within 20 days after receipt of the forfeiture notice or of the date of the first publication of the forfeiture notice with the local unit of government that seized the property or the state, if the property was seized by the state.
Act No. 418
Public Acts of 2016
Approved by the Governor
January 3, 2017
Filed with the Secretary of State
January 4, 2017
EFFECTIVE DATE: April 4, 2017
STATE OF MICHIGAN
98TH LEGISLATURE
REGULAR SESSION OF 2016
Introduced by Rep. Lucido
ENROLLED HOUSE BILL No. 4629
AN ACT to amend 1978 PA 368, entitled “An act to protect and promote the public health; to codify, revise, consolidate, classify, and add to the laws relating to public health; to provide for the prevention and control of diseases and disabilities; to provide for the classification, administration, regulation, financing, and maintenance of personal, environmental, and other health services and activities; to create or continue, and prescribe the powers and duties of, departments, boards, commissions, councils, committees, task forces, and other agencies; to prescribe the powers and duties of governmental entities and officials; to regulate occupations, facilities, and agencies affecting the public health; to regulate health maintenance organizations and certain third party administrators and insurers; to provide for the imposition of a regulatory fee; to provide for the levy of taxes against certain health facilities or agencies; to promote the efficient and economical delivery of health care services, to provide for the appropriate utilization of health care facilities and services, and to provide for the closure of hospitals or consolidation of hospitals or services; to provide for the collection and use of data and information; to provide for the transfer of property; to provide certain immunity from liability; to regulate and prohibit the sale and offering for sale of drug paraphernalia under certain circumstances; to provide for the implementation of federal law; to provide for penalties and remedies; to provide for sanctions for violations of this act and local ordinances; to provide for an appropriation and supplements; to repeal certain acts and parts of acts; to repeal certain parts of this act; and to repeal certain parts of this act on specific dates,” by amending sections 7523 and 7524 (MCL 333.7523 and 333.7524), section 7523 as amended by 2006 PA 130 and section 7524 as amended by 2011 PA 161.
The People of the State of Michigan enact:
Sec. 7523. (1) If property is seized under section 7522, forfeiture proceedings shall be instituted promptly. If the property is seized without process under section 7522, and the total value of the property seized does not exceed $50,000.00, the following procedure shall be used:
(a) The local unit of government that seized the property or, if the property was seized by this state, the state shall notify the owner of the property that the property has been seized, and that the local unit of government or, if applicable, the state intends to forfeit and dispose of the property by delivering a written notice to the owner of the property or by sending the notice to the owner by certified mail. If the name and address of the owner are not reasonably ascertainable, or delivery of the notice cannot be reasonably accomplished, the notice shall be published in a newspaper of general circulation in the county in which the property was seized, for 10 successive publishing days.
(b) Unless all criminal proceedings involving or relating to the property have been completed, the seizing agency shall immediately notify the prosecuting attorney for the county in which the property was seized or, if the attorney general is actively handling a case involving or relating to the property, the attorney general of the seizure of the property and the intention to forfeit and dispose of the property.
(c) Any person claiming an interest in property that is the subject of a notice under subdivision (a) may, within 20 days after receipt of the notice or of the date of the first publication of the notice, file a written claim signed by the claimant with the local unit of government or the state expressing his or her interest in the property. Upon the filing of the claim, the local unit of government or, if applicable, this state shall transmit the claim with a list and description of the property seized to the attorney general, the prosecuting attorney for the county, or the city or township attorney for the local unit of government in which the seizure was made. The attorney general, the prosecuting attorney, or the city or township attorney shall promptly institute forfeiture proceedings after the expiration of the 20-day period. However, unless all criminal proceedings involving or relating to the property have been completed, a city or township attorney shall not institute forfeiture proceedings without the consent of the prosecuting attorney or, if the attorney general is actively handling a case involving or relating to the property, the attorney general.
(d) If no claim is filed within the 20-day period as described in subdivision (c), the local unit of government or this state shall declare the property forfeited and shall dispose of the property as provided under section 7524. However, unless all criminal proceedings involving or relating to the property have been completed, the local unit of government or the state shall not dispose of the property under this subdivision without the written consent of the prosecuting attorney or, if the attorney general is actively handling a case involving or relating to the property, the attorney general.
(2) Property taken or detained under this article is not subject to an action to recover personal property, but is deemed to be in the custody of the seizing agency subject only to this section or an order and judgment of the court having jurisdiction over the forfeiture proceedings. When property is seized under this article, the seizing agency may do any of the following:
(a) Place the property under seal.
(b) Remove the property to a place designated by the court.
(c) Require the administrator to take custody of the property and remove it to an appropriate location for disposition in accordance with law.
(d) Deposit money seized under this article into an interest-bearing account in a financial institution. As used in this subdivision, “financial institution” means a state or nationally chartered bank or a state or federally chartered savings and loan association, savings bank, or credit union whose deposits are insured by an agency of the United States government and that maintains a principal office or branch office located in this state under the laws of this state or the United States.
(3) Title to real property forfeited under this article shall be determined by a court of competent jurisdiction. A forfeiture of real property encumbered by a bona fide security interest is subject to the interest of the secured party who neither had knowledge of nor consented to the act or omission.
(4) An attorney for a person who is charged with a crime involving or related to the money seized under this article shall be afforded a period of 60 days within which to examine that money. This 60-day period begins to run after notice is given under subsection (1)(a) but before the money is deposited into a financial institution under subsection (2)(d). If the attorney general, prosecuting attorney, or city or township attorney fails to sustain his or her burden of proof in forfeiture proceedings under this article, the court shall order the return of the money, including any interest earned on money deposited into a financial institution under subsection (2)(d).
Sec. 7524. (1) When property is forfeited under this article, the local unit of government that seized the property may do any of the following, or if the property is seized by or in the custody of this state, the state may do any of the following, subject to section 7523(1)(d):
(a) Retain the property for official use.
(b) Sell the property that is not required to be destroyed by law and that is not harmful to the public. The proceeds and any money, negotiable instruments, securities, or any other thing of value as described in section 7521(1)(f) that are forfeited under this article shall be deposited with the treasurer of the entity having budgetary authority over the seizing agency and applied as follows:
(i) For the payment of proper expenses of the proceedings for forfeiture and sale, including expenses incurred during the seizure process, maintenance of custody, advertising, and court costs, except as otherwise provided in subsection (4).
(ii) The balance remaining after the payment of expenses shall be distributed by the court having jurisdiction over the forfeiture proceedings to the treasurer of the entity having budgetary authority over the seizing agency. If more than 1 agency was substantially involved in effecting the forfeiture, the court having jurisdiction over the forfeiture proceeding shall equitably distribute the money among the treasurers of the entities having budgetary authority over the seizing agencies. A seizing agency may direct that the funds or a portion of the funds it would otherwise have received under this subsection be paid to nonprofit organizations whose primary activity is to assist law enforcement agencies with drug-related criminal investigations and obtaining information for solving crimes. The money received by a seizing agency under this subparagraph and all interest and other earnings on money received by the seizing agency under this subparagraph shall be used only for law enforcement purposes, as appropriated by the entity having budgetary authority over the seizing agency. A distribution made under this subparagraph shall serve as a supplement to, and not a replacement for, funds otherwise budgeted for law enforcement purposes.
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EHB 4629
(c) Require the administrator to take custody of the property and remove it for disposition in accordance with law.
(d) Forward it to the bureau for disposition.
(2) Notwithstanding subsection (1), this state or local units of government may donate lights for plant growth or scales forfeited under this article to elementary or secondary schools or institutions of higher education that request in writing to receive those lights or scales under this subsection, for educational purposes. This state or local units of government shall donate lights and scales under this subsection to elementary or secondary schools or institutions of higher education in the order in which the written requests are received. This state or local units of government may limit the number of lights and scales available to each requestor.
(3) In the course of selling real property under subsection (1)(b), the court that has entered an order of forfeiture may, on motion of the agency to whom the property has been forfeited, appoint a receiver to dispose of the real property forfeited. The receiver is entitled to reasonable compensation. The receiver has authority to do all of the following:
(a) List the forfeited real property for sale.
(b) Make whatever arrangements are necessary for the maintenance and preservation of the forfeited real property.
(c) Accept offers to purchase the forfeited real property.
(d) Execute instruments transferring title to the forfeited real property.
(4) If a court enters an order of forfeiture, the court may order a person who claimed an interest in the forfeited property under section 7523(1)(c) to pay the expenses of the proceedings of forfeiture to the entity having budgetary authority over the seizing agency.
Enacting section 1. This amendatory act takes effect 90 days after the date it is enacted into law.
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.
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.
Civil asset forfeiture is a controversial but legal practice that allows police to seize cash and property from people without charging them with a crime. If police simply suspect that you acquired something as a result of illegal activity, they can take it from you. If you want to get it back, the onus is on you to prove you got it legally.
As you might imagine, a lot of folks are up in arms about this. But reform has been slow. New Mexico and Montana are the only two states that have placed significant limits on the process. A similar effort in California recently died in the state legislature.
One possible reason? Most Americans aren’t even aware that civil asset forfeiture is happening.
According to a recent Huffington Post/YouGov poll, nearly three-quarters of Americans haven’t even heard of the term “civil asset forfeiture.” So pollsters got around this by asking a specific question: “To the best of your knowledge, when can law enforcement permanently seize money or other property from a person?”
Only 30 percent of Americans correctly answered that property could be seized on the basis of suspicion alone. A much larger plurality — 40 percent — think that police need a conviction in order to permanently seize goods. But that is not true.
When asked when police should be able to seize property from citizens, an overwhelming majority — 71 percent — say this should happen only after a conviction.
The amazing thing about this finding is how much agreement there is across political and demographic groups. Seventy-two percent of Democrats say a conviction should be necessary, as do 77 percent of Republicans. Sixty-eight percent of blacks and 73 percent of whites agree.
Part of the reason why so few people are worked up about civil asset forfeiture, even though many oppose it on principle, may have something to do with the term itself. “Civil asset forfeiture” is a bland, starchy phrase. You can feel your eyes start to glaze over as you read it. It is a perfect piece of bureaucratic language — it obscures its true meaning behind a thicket of legalese.
OTTAWA COUNTY, MI – An attorney claims prosecutors pressured state police crime labs to change the way THC, the active ingredient in marijuana, is reported in an effort to circumvent Michigan’s medical marijuana law.
Michael Komorn alleges scientists were told to report an unknown origin for THC contained in oil, wax or perhaps a brownie if no visible plant material was present. The THC would then be declared a synthetic substance rather than marijuana – turning a misdemeanor pot charge to a two-year felony.
“The crime lab is systematically biased towards falsely reporting Schedule 1 synthetic THC, a felony, instead of plant-based marijuana, a misdemeanor, ” Komorn, a Southfield attorney known for handling medical marijuana cases, told The Grand Rapids Press and MLive.
In the case of Max Lorincz, a 35-year-old Spring Lake man with a medical marijuana card, the change could turn him into a felon, Komorn said.
Lorincz’s troubles started in September 2014 after calling 911 for medical assistance for his wife. A police officer responded and spotted a small amount – “a smudge,” Komorn said – of hash oil.
Ottawa County prosecutors charged him in January with marijuana possession, a misdemeanor. He refused to plead guilty because he was a valid medical marijuana user. The charge was dropped in February, only to be replaced by the felony synthetic THC charge.
Komorn used the Freedom of Information Act to obtain numerous emails from state police crime lab workers, some raising concern about the way they had to report THC cases. Others testified in court about the new policy of denying evidence of THC coming from a marijuana plant if no material is found.
He contends that the Prosecuting Attorneys Association of Michigan and state Attorney General Bill Schuette, an opponent of medical marijuana, influenced state police policy.
“It is scandalous, scandalous. How can you trust the state lab when they are influenced by politicians?” he said.
State police said in a statement: “The ultimate decision on what to charge an individual with rests with the prosecutor. The role of the laboratory is to determine whether marihuana or THC are present. Michigan state police laboratory policy was changed to include the statement “origin unknown” when it is not possible to determine if THC originates from a plant (marihuana) or synthetic means. This change makes it clear that the source of the THC should not be assumed from the lab results.”
Ottawa County Prosecutor Ronald Frantz could not be reached for comment.
A hearing in Lorincz’s case is set for Nov. 9 in Ottawa County Circuit Court.
In an email Komorn obtained from authorities, a state police crime lab supervisor, Kyle Hoskins, said examiners need to see plant material because they would have no idea how it was produced unless they watched its production. He noted the debate and asked the opinion of Ken Stecker of the Prosecuting Attorney Association of Michigan, who reportedly responded: “That is my opinion, THC is a schedule 1 drug regardless of where it comes from. I hope that helps. Ken.”
Lt. James Pierson, director of the Grand Rapids laboratory, said that police are finding a “significant amount of THC wax and oil,” which he said are not covered by the medical marijuana law.
If police seize wax or oil from a medical marijuana patient, and the lab test identifies the substance as marijuana, rather than delta-1-THC, there is no probable cause to arrest, Pierson said in an email referenced by Komorn in court filings.
He said he learned that if a “speck” of plant material is in the oil, the test will come back as marijuana.
“Is there any way to get this changed? Our prosecutors are willing to argue that one speck of marijuana does not turn the larger quantity of oil/wax into marijuana,” Pierson wrote.
Bradley Choate, supervisor of the Controlled Substances Unit in Lansing, disagreed with the changes. He said analysts are left with two choices when finding THC: identify it as marijuana, which is a misdemeanor for possession, or a synthetic equivalent of THC, which is a felony if possessed.
“There is not a third choice,” Choate wrote. “The question then becomes is the THC from a natural source, i.e., marihuana, or a synthetic source. The presence of other cannabinoids indicates that the substance is from a natural source. I don’t know of any other way to determine that THC was synthesized unless a lab was found and the pre cursor substances to make THC were present.”
He said prosecutors rely on their reports in filing charges. A report that says delta-1-THC with no explanation would lead a prosecutor to think the substance was synthetic.
“This could lead to the wrong charge of possession of synthetic THC and the ultimate wrongful conviction of an individual. For the laboratory to contribute to this possible miscarriage of justice would be a huge black eye for the Division and the Department.”
As forensic scientists, Choate said they had to apply science to the law.
“I have a problem with the procedure manual stating that a conclusion of marihuana cannot be stated in the report. … The conclusion is incorrect because the resins are Marihuana. Apparently analysts in our system (are) hung up on the fact that to identify marihuana they need to see plant material.”
Choate said that “Guiding Principles” training says “that ‘Conclusions are based on the evidence and the reference material relevant to the evidence, not on extraneous information, political pressure, or other outside influences.”
“When we made the previous changes I made it very apparent that I did not agree with it. One of my concerns was that by reporting out THC instead of marijuana it would lead Prosecutors charging people with synthetic THC. This appears to be what the agency wants. The question I would pose to all of our analysts is how they would answer questions on the stand.
“In the scenario described how would they answer the question that absent the plant material speck, in their opinion is the rest of the wax material marihuana or not and in their opinion is the THC identified synthetic or natural? Again the legal definition of marihuana includes the resinous extract which contains cannabinoids and we can identify those cannabinoids.”
