Oakland County Re-Visits Medical Marijuana Drama

The Oakland County Sheriff's interpretation of the Michigan Medical Marijuana Act (MMA) and the Controlled Substances Act has forced two local marijuana facilities to lock their doors.  One of the pot-growing operations, Big Daddy's Hydro, in Oak Park, closed voluntarily; the other facility, right here in Commerce Township where this blog post is being composed, was the subject of a task-force raid.

The Oakland Press ran a front-page story on Saturday about Big Daddy's Hydro.  The facility was on the receiving end of an Oakland County Sheriff's raid back in January.  Since then, the owners were resolved to carry on their operation; an operation they insisted was legal under the MMA.  Sounds like a movie might be in there somewhere.

Before Hollywood came knocking to negotiate the movie rights to this true crime drama, however, Big Daddy's in Oak Park locked its doors.  The decision was based on the observations of its management group that "patients" were being shook down on the street after leaving the facility.  Also, it did not help that four members of the management group were charged with distribution felonies by the Oakland County Prosecutor.

Big Daddy's is consolidating pot growing and distribution operations into their Chesterfield Township facility in Macomb County, and in Detroit.  Therefore, Big Daddy's alleged violations of the MMA or the Controlled Substances Act are now in the hands of Prosecutors Eric Smith and Kym Worthy.

The more recent raid on the Commerce Township facility presents an example of an increasingly sophisticated approach to medical marijuana enforcement by the Oakland County Prosecutor.  This bust was executed by a joint task force with a federal component; the DEA.  [Remember, marijuana remains illegal in any form under federal law.]  Also, the Sheriff has commented publicly that the facility violated the Controlled Substances Act, not the MMA.

Criminal defense attorney Neil Rockind was quoted in the Oakland Press yesterday as saying, "They can try to describe it any way they want.  I know what happened...and if they want to pursue a case then I'll be there."  Yeah, sounds like Neil; never one to shy away from high-stakes criminal defense litigation.

The Michigan Court of Appeals handed prosecutors a serious weapon when it issued its People v McQueen decision last month.  The published, thus binding, decision of the Court of Appeals runs a lance through most MMA distribution schemes; at least if those involved want to make any money from their elaborate growth and distribution operations.

This brings us back to the intent of the medical marijuana referendum that passed overwhelmingly by Michigan voters in the 2008 election.  The MMA is designed to encourage a "grow-your-own" and "trade-among-friends" approach to distribution.

From the outset, those involved in growing pot have been looking to make money from the provisions of the MMA.  Because the Act is silent on pot sales, a legal debate has, er, cropped-up about whether distribution via sale is permitted or proscribed by the Act.

Also, as the Law Blogger has pointed out time and again; the premise of patients getting medical attention from marijuana, although legitimate in a number of cases, is a complete sham in the overwhelming number of patient-care provider relationships.  This scam will likely bring down the MMA in the end.

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Medical Marijuana Lawyer Seeks Further Appeal on Dispensary Case

This blog has covered the recent Michigan Court of Appeals decision in Michigan v McQueen which outlawed medical marijuana dispensaries as well as patient-to-patient pot sales.  This appeal is the latest chapter in the pot drama that has gripped our state since the passage of the referendum that legalized medicinal marijuana by a convincing 3/4 popular vote in the 2008 election.

Our readers may recall that the oral arguments in this appeal were the subject of some fanfare when journalist Eric Van Dussen sought to record the arguments, as he did in the People v Anderson medical marijuana case.  Jurisprudence in the making is certainly newsworthy; particularly when it concerns our fledgling yet tortured medical marijuana law.

Now this appeal grinds onward to the Michigan Supreme Court.  So promises Matthew R. Newburg, legal counsel to the Michigan Association of Compassion Centers, appearing as an amicus in the case.

The Court of Appeals granted Van Dussen's request to record the argument on behalf of the media; granted the Attorney General, also an amicus, 10-minutes of appellant's oral argument time; but denied Mr. Newburg's request to get in on the action at oral argument; his 10-minutes [of fame] will have to wait for another case, unless the Supreme Court grants his application for leave to appeal.

The Compassionate Apothecary claims it was simply operating a "club" of about 345 legal pot growers who "traded" various strains of medical marijuana.  In exchange for making a clubhouse available for its pot aficionado membership, Compassionate Apothecary took commissions off the top of all intramural marijuana transactions.

The intermediate appellate court ruled that the act does not authorize such commissions or transactions.  The Isabella County Prosecutor has mailed the appellate opinion to all marijuana dispensaries in the county;  advising them to cease any operations that contravene the appellate court's decision.

Going beyond the bald mechanics of his client's business model, however, Attorney Newburg told Michigan Lawyers Weekly that the MMA expressly provides for transfers from caregivers to patients and also allows patients who "grow-their-own".   The Apothecary's legal counsel also noted that the MMA is silent regarding so-called "patient-to-patient" transfers of the type that apparently went down at the club.

With those arguments in hand, the Compassionate Apothecary now proceeds to the Michigan Supreme Court.  Given the mess that this law has become, the High Court may actually take the bait and grant the Apothecary's application for leave to further appeal so they can sort it all out.

We will follow this one as it develops.  Even if the High Court declines this case, there are others building up behind it that are equally, er, "newsworthy".

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Medical Marijuana Dispensaries Ruled Illegal by Court of Appeals

Yes, the ballot proposal writers hired by our pot lobby handed criminal defense lawyers a gift-horse when they wrote-up the Michigan Medical Marijuana Act.  Just how are folks supposed to get their marijuana anyway?

A 3-judge panel of the Michigan Court of Appeals has reversed an Isabella County Circuit Judge that had denied the county prosecutor's request for an injunction that would close down the local Compassion Apothecary; a medical marijuana dispensary.  After this decision, consider the Apothecary closed.

The sole issue decided in the case was whether the MMA provides for the "sale" of medical marijuana.  The Court of Appeals said, "no".  That was a foregone conclusion under any plain reading of the provisions of the Act.

Anyone reading the MMA will note that the referendum writers, in their wisdom, provided two ways for "patients" to obtain their, er, "medication".  Either you "grow your own", or you get your pot from a certified care provider who can only service 5 patients at a time with an overall limit to the total number of marijuana plants on the premises.  The MMA is silent, however, on dispensaries; nor does it provide for transfer by sale.

The Compassion Apothecary [BTW, even the name of this dispensary was illegal so they changed it to "CA"] is a membership-based collective designed to distribute a continuous supply of marijuana to certified patients.  The Apothecary  operates a locker system whereby patients and care providers pay monthly fees for both membership in the collective and use of a locker.

The CA is a "no grow" and "no smoke" facility.  Patients can inspect [see, smell and touch] a wide variety of marijuana strains prior to purchase.  The pot price is set by the care provider; the CA takes a 20% "service fee" on the transaction.

Sounds like an organic "win-win" right?  Wrong.  The collective ran afoul of the law, according to the Court of Appeals, as the MMA does not allow patient-to-patient sales or transfers.  Also, the Court held that the CA illegally "possessed" the marijuana under both the Public Health Code, and the MMA.

Accordingly, the Court of Appeals concluded that the CA could be shut down on the basis it was a "public nuisance" as contended by the Isabella County Prosecutor.  Case closed; the CA dispensary, and all others like it, are out of business by operation of this published, thus binding, decision of the Court of Appeals.

While the CA huddles with its attorneys to decide whether to take further appeal to the Michigan Supreme Court, Michigan Attorney General Bill Schuette applauded the decision as a much needed patch on a law that "has more holes than Swiss Cheese."   AG Schuette told the Detroit News that the MMA has been "hijacked" by folks looking to profit from pot sales and by unscrupulous doctors issuing bogus patient certifications.

This blog has long-held the view that the MMA is a poor law.  The Act does not square with the reality that many qualified "patients", perhaps even a majority, once endorsed by Michigan's DCH, smoke pot recreationally, not medicinally.

Some "On-the-Take" physicians conduct cursory reviews of an applicants' medical records in their assessment of a claimed chronic or debilitating medical condition, as required under the Act.  Schuette is looking to criminalize bogus physician certifications.  We're certainly behind that legislative initiative; good luck Bill.

Whenever a law is based on a fiction, as this one is, our jurisprudence suffers.  As AG Schuette correctly points out, too many folks are equating legalization of marijuana with the medicinal use of marijuana.  In this decision, the Court of Appeals removes this stubborn disconnect.

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Senate Proposes Statewide Registry for Medical Marijuana Patients & Caregivers

Earlier this week, a bill was submitted to the plenary Michigan Senate by the Judiciary Committee that would require a state-wide registry for medical marijuana patients and care providers.  Senator Rick Jones, a sponsor of the proposed legislation and chairman of the judiciary committee said the registry would be a "critical tool" for law enforcement.

 The mechanics of the proposed law would require the DCH to submit a registrant's name and address to the state police within 48-hours of issuing the marijuana registration card.  The police would then be able to call-up the data, for example, during routine traffic stops.

Of course, the compassion care industry is up in arms, viewing the bill as a significant affront to a registrant's privacy.  An earlier version of the bill called for the submission of a wider scope of personal information about a registrant.

Oddly, the ACLU has come around on this bill, opposing the earlier version as overly intrusive, but conceding that a state-wide registry could prevent potentially dangerous raids where lots of feathers get ruffled.  Still, the ACLU's official position is that the bill, even as amended, needs a separate "probable cause" requirement prior accessing the database.  Unworkable, in our humble opinion.

Senator Jones' committee was busy this week, also introducing another medical marijuana related bill; this one to stop those pesky lawsuits filed by high profile lawyers against municipalities over their pot ordinances.

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Satelite Tracking Devices May Constitute a Fourth Amendment "Search"

At the Law Blogger, we often see the use of GPS tracking devices in the divorce context.  What happens when the police use such devices to gather evidence of crime?  Are your movements constitutionally protected?

Two cases percolating their way to the SCOTUS (a petition for certiorari already filed in one) involve police use of high-technology tracking devices.  The High Court will be asked to decide: a) whether the prolonged monitoring of a suspect via GPS technology is a "search" under the meaning of the Fourth Amendment; and b) whether police entry onto private property to plant the device invalidates such a search.

If the petitions are granted, these questions could be briefed, argued and decided in the 2011 term of the Court; the "day-after-tomorrow" on our common law clock.

Brief legal background:  More than 25-years ago, SCOTUS ruled in U.S. vs Knotts that the police could use an electronic "beeper" to track a suspect's movements to and within a drug lab without triggering the warrant requirement of the Fourth Amendment.  Federal courts throughout the various circuits across the country, and the patchwork of state courts, have developed a wide array of conflicting laws governing the extent and duration such monitoring can take before the surveillance becomes a search requiring a warrant based on probable cause.

Now its time for the SCOTUS to clarify things.

In Pineda-Moreno vs United States, petitioner, an Oregonian, maintained a huge pot farm hidden deep within the forests of Southern Oregon and Northern California.  Using a variety of high-tech GPS devices, some as small as a stick of gum, federal agents were able to build a manufacture/distribution case against Juan Pineda-Moreno.

The federal agents came onto the curtailage (privately-owned surrounding area) of Mr. Pineda-Moreno's manufactured home to place a variety of devices onto his Jeep from June through September back in 2007.  They were even able to replace the batteries on some of the tracking devices.  Juan was oblivious to their efforts.

In his guilty plea (he is currently finishing up a 4-year prison sentence), Pineda-Moreno preserved his right to challenge the fed's "search" of his person; his movements.  The Ninth Circuit Court of Appeals ruled the agents' tracking was not a "search" within the meaning of the Fourth Amendment.

The other case is coming to SCOTUS via a likely government petition for cert in Maynard vs U.S. where the D.C. Circuit has ruled far differently than the Ninth Circuit on a variety of related issues.

SCOTUS has long held that police may closely scrutinize a vehicle; particularly a moving vehicle.  What this technology, and now, these cases, focus the Court on is whether extensive tracking transforms our vehicles from objects of public viewing (without any reasonable expectation of privacy) into purveyors of private information which can only be tapped via a probable cause warrant.

Stay tuned as SCOTUS catches up to, and rules on, the latest law enforcement surveillance techniques.

Sidebar Note to all you certified marijuana users out there, palliative or recreational; federal charges are a real risk, with harsher sentencing consequences.

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Progressive Marijuana Initiatives Lose Ground

California's Proposition 19 lost by a vote of 56% to 44%.  If successful, the proposed law would have been the first in the country to legalize the recreational use of marijuana.

In Arizona, the medical marijuana proposition was too close to call as of Thursday, with the nays leading by less than one half of one percentage point.  That contest will most likely be called sometime today; looks like Arizonans will reject medicinal marijuana after all.

In California, the pot initiative lost because too few voters under age 26 turned out and moderate voters rejected the initiative.  Recent violence with Mexican drug gangs in both California and Arizona did not help either initiative.

Mixed messages float around the issue here in Michigan.  Recently, a huge pot-expo scheduled for the Pontiac Silverdome, billed as the largest pot-party in the world, was canceled at the last minute.

All this raises the questions: do we really need to legalize pot?  Is ours a pot-smoking nation?  Does marijuana have genuine palliative properties?

One of the major problems of perception with medical marijuana laws is that folks are simply going through the administrative steps to get "medically" certified to use pot, but are smoking on a recreational basis.

No good comes of a law that sets requirements that are perceived as a farce.  It would perhaps be better to legalize marijuana outright, then regulate its production, sale, and distribution.

California was really looking forward to billions in pot-derived state revenue.  Here in Michigan, there is confusion about who can legally grow pot and how it should be grown and distributed to "patients".  In Arizona, the question is too close to call 3-days after the mid-term elections.

Yeah, right.  Good luck with all that...

UPDATE:  A month after the election, it seems the "mainstream" media outlets are adopting the position asserted in the above blog post; medical marijuana certificates are being acquired to insulate recreational users from criminal charges rather than for legitimate palliative purposes.  Here's an article on this point from Nolan Finley in the Detroit News.


UPDATE on the UPDATE: Here's a great article from the Traverse City Record Eagle on this subject which details the case that most likely will go to the Michigan Supreme Court to test the viability and scope of the Michigan Medical Marijuana Act.

MORE UPDATES:  Now, the feds, via the DEA, have subpoenaed the Michigan Department of Community Health (the state agency in charge of administering the MMA) for all records relating to seven individuals under investigation by the DEA.  Read more here.

EVEN MORE UPDATES:  Now, Holland is getting in on the act, asserting it's attempt to "regulate" the MMA.  Here's the link.

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What are they Smoking?

This post is the original content of The Michigan Lawyer which is the official blog of Michigan Lawyers Weekly:

What are they smoking?  That’s what Detroit-based Cannabis Counsel lawyer Matthew Abel is asking of the Michigan Senate Judiciary Committee, who is meeting next week to discuss a package of bills which would amend the public health code so that medical marijuana must be dispensed by pharmacists, and to classify medical marijuana as a schedule 2 controlled substance.

“It seems that if the legislature ever passed these bills, they would be in conflict with the medical marijuana statute,” Abel said. “So they’d need a 3/4 vote to supercede the law, and you know that they can’t even get 3/4 of the legislature to agree on lunch, let alone this.”

Southfield-based lawyer Michael Komorn, who also serves as the treasurer for the Michigan Medical Marijuana Association, said the bills are similar to bills introduced last year; last year, the bills which also would have allowed for 10 marijuana growing facilities to be affiliated with a pharmacy, got no traction.

This year’s incarnation of the bills would essentially make all production of medical marijuana illegal, though use would still be protected by law, Komorn said.

“It’s like the stamp act, arcane and without any understanding of what really is going on with patient needs,” Komorn said. “Bottom line, this is an attempt ot repeal the Michigan medical marijuana act.”

It’s impossible, Abel said, to require dispensing of medical marijuana through pharmacies.

“They don’t have a supply, and no way to get it. There’s just no way for them to do it,” Abel said.

Still, he’s resting easy with the idea that the bills are going nowhere, and are really more about grandstanding for political popularity than they are about the Michigan medical marijuana law.

The committee will take up the bills Jan. 19, 1 p.m., in room 210 in the Farnum building in Lansing.
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Law Blogger Note: The Michigan Medical Marijuana Act is the subject of a post in the electronic criminal lawyer blog.

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