Articles Posted in Medical Marijuana Possession

After a lengthy court battle which ended up in the Michigan Supreme Court, Livingston County Chief Judge Michael Hatty signed an order vacating a citizen’s conviction for illegally manufacturing marijuana. The Supreme Court found that the police had violated the Fourth Amendment by conducting an unreasonable search and seizure which resulted in finding evidence related to marijuana cultivation. While marijuana is now fully legalized in Michigan, this case occurred back in 2012, when only medical marijuana was legal. A charge of illegal manufacture or distribution of marijuana was the felony charge that this man faced. The Livingston County Circuit Court originally denied defendant’s motion to suppress the marijuana evidence. Now with the Supreme Court’s ruling, the case was sent back to Livingston County Circuit Court which was left with no other option but to dismiss the case.

Original Case Details

The defendant in this case was charged with manufacturing marijuana when Michigan state troopers arrived at the defendant’s home to execute an arrest warrant for the defendant’s son. The state troopers alleged they smelled burning marijuana and forcibly entered the home without a warrant and found large amounts of marijuana. The police arrived at the home looking for defendant’s son without knowing if the son was even home. They were at most permitted to do a “knock and talk” to see if the son was in fact at the home. The troopers believed they had exigent circumstances which would allow them to enter the home without a proper search warrant.

As of November 2019, the state of Michigan approved the ability for licensed marijuana dispensaries to deliver marijuana and related products to their customers. This adds onto the already-legal medical marijuana delivery system that was previously approved by the state. The state of Michigan has guidelines on both medical and recreational marijuana delivery services that you can read more about here. Once more recreational stores are licensed and operational, this is expected to be a booming business along with the already strong medical marijuana industry. You can already simply go online and order what you like if you are a medical marijuana patient. This delivery service will serve as a natural extension to what is already in place.

Who Is Allowed To Deliver Marijuana?

Only licensed delivery drivers are allowed to deliver marijuana. The drivers must be over 21 years of age with a valid license to drive. The drivers cannot carry more than 15 ounces of marijuana at any time. Delivery cars must have a GPS locator and any product must be secured inside the vehicle if left unattended. The drivers are not allowed to be employed by more than one delivery service or dispensary. Delivery drivers may only make up to ten deliveries before being required to go back to the dispensary before any further deliveries. The state can request these records for review at any time to ensure compliance. Deliveries must be made to either a residential address or a previously state approved place for marijuana consumption. Basically, have it delivered to your address in order to avoid any issues.

With the growing interest in medical cannabis within the state of Michigan, prosecutions for drug possessions have grown by leaps and bounds, the main reason for this is the “Plain Smell Doctrine.”

The “Plain Smell Doctrine” is a concept that that taken on a life of its own within the state of Michigan. In what may shock the conscience, Michigan law recognizes that the smell of marijuana alone by a person qualified to know the odor may establish probable cause to search a motor vehicle, under the motor vehicle exception to the warrant requirement. This has led to a great deal of concern in the criminal law section of our state. The leader in criminal defense in our state is Scott Grabel of Grabel and Associates. Grabel weighed in on the topic of the “Plain Smell Doctrine” for this article.

Grabel stated, “The Kazmierczak case changed the face of criminal litigation. That case provided that burned, unburned and the burning of marijuana could lead to a justification of the police searching the entire vehicle. This is stating that the officer is qualified based upon one of his senses to “create probable cause” and having that theory in place puts everyone in jeopardy. It is as if the medical cannabis user is becoming a target even while having a valid Michigan Medical Marijuana Card on their person.”

On September 12, 2017, the Michigan Medical Marihuana Licensing Board left many patients and caregivers with a sense of fear and frustration. As one member of the audience stated, “Does this board want us to start buying drugs on the street? That’s what it sounds like to me? I did everything right and now they are going to compromise my medical needs!!!”

The words of that patient was shared by many when updates were released from the Michigan Cannabis Community. The highlights of the meeting are outlined below and lead many to wonder what will happen next. The points that were stated include:

1. Dispensaries will close on December 15 and will not reopen until late March (if ever).

What if I told you that a business that seems to be legal and a cure to the economic crisis in the state of Michigan was growing more vulnerable by the day? While that may seem like a stretch to many that are reading this, the first meeting of Michigan’s Medical Marijuana Licensing Board in June of this year left far more questions than answers and in all communications since the issue of medical cannabis has grown even murkier. We are left with the thought that the issue of medical cannabis can be the savior for the consistent Michigan economic crisis or it could lead to an array of criminal prosecutions. To address some of these answers, we turned to leaders in the legal community to provide insight. What they had to say was insightful but also should put cannabis dispensaries on alert.

We started the research by speaking to Scott Grabel and Grabel and Associates. With offices in Lansing, Ann Arbor and Grand Rapids, Michigan, Grabel has evolved into the leader of criminal defense in the state of Michigan. Grabel stated, “When Governor Rick Snyder named Rick Johnson as the Chairman of the Cannabis Board he sent a clear message that the state was going to have a conservative spin on the topic. In addition to Johnson, Board Member Donald Bailey has stated clearly that every dispensary operating right now is in violation of the “Michigan Medical Marihuana Act” and with that comment being placed on the public record, our state will be faced with two critical issues: The first being that they can leave business as usual and not threaten prosecutions. The other option has far greater consequences to one’s freedom but can also equate to money for the state. If Michigan starts a sweep of criminal prosecution there could be many fines levied and that is a direction the state could go. While this is not a pleasant thought, it is a possibility that we need to face head on and with intelligence. If we prepare for that possibility we can preserve freedom, if we are negligent, a lot of good people can face a multitude of ugly consequences.”

Matthew McManus, a partner at Ann Arbor Legal, in Ann Arbor, Michigan weighed in. McManus stated, “It is amazing how many lawyers are making money by providing bad advice. It is almost as if many litigators are overlooking the preemption issue. The 10th Amendment is not a guarantee to be a safeguard in this situation. This is the dawning of a new age in Michigan but the only ones’ that can reap the benefits are those that are a step ahead of the game. To not prepare or have an attorney provide you lip service is not going to be advantageous to anybody. If you have been in violation, the time to mitigate intelligently is the move as opposed to posting about cannabis on Instagram and Facebook. The lack of intelligence displayed by some of those in our field is shocking. This board is not one that is going to display a great deal of forgiveness for a lack of respect. As a group, we need to prepare and do better.”

While there is little question that medical cannabis in Michigan circa 2017 is what Prohibition was in the mid 1930’s, a key to cannabis facilitation is the physician. Lately, the medical professional has become a target for both state and federal prosecution as they are viewed the gateway to helping people obtain their medical marijuana cards.

In an article published by the Detroit Free Press on November 3, 2016 it was stated that one doctor approved nearly 12,000 patients for medical marijuana in Michigan. This was the beginning of an array of national scrutiny for doctors across the state with many that have gone into hiding. If medical cannabis is legal in the state of Michigan, why are medical professions fearing for their license? We have a chance to sit down and speak to legal professionals that have garnered attention as the top in the criminal industry to discuss the issue at length. What they have to say provides a combination of both legal expertise and common sense. The first to weigh in on the issue was Scott Grabel of Grabel and Associates.

Grabel has developed a reputation as the top criminal litigator across the state of Michigan. One of the ways that Grabel has developed his stellar reputation is defending those in the cannabis field many of whom include those in the medical profession. Grabel stated, “We have to start with the premise that there are good doctors and bad doctors in the field. There are those that truly want to help patients and those that want to make a quick buck. No matter what category the physician falls into, many seem to forget that they need to establish a ‘bona-fide physician-patient relationship’ and this means meeting the doctor for more than just obtaining your marijuana card. If there is not a relationship established and we are looking at a one-time transaction, everyone, including the patient is vulnerable. The lack of due diligence from even those with the best of intentions can lead to loss of licensure and criminal prosecution. Our job in litigation should be to tutor the physician about the law as opposed to just taking their money. We have an obligation and the reality is that many lawyers are in this field for the wrong reasons. Many of our clients consult with us before they face incarceration. There is no question that prevention is often the best defense.”

If things keep going as they have been, it could soon be legal to use marijuana in the state of Michigan. While marijuana has been legal in the state for medical purposes since 2008, many across the state are in support of adding the legalization of marijuana to the ballot in 2018. In fact, recently it was announced that more than 100,000 signatures had been collected by The Coalition to Regulate Marijuana Like Alcohol, well ahead of the 250,000 signatures necessary to get the issue on the ballot within a six-month time frame.

According to news reports, the most recent campaign filing with the Secretary of State by the coalition has raised more than $818,000 combined through direct and indirect contributions, putting the group’s fundraising and signature efforts ahead of schedule.

Cannabis is becoming legal for recreational use in more and more states, although understandably there are those opposed to its legalization. If approved in Michigan, limited quantities of marijuana would be legal for those 21 years of age and older, with taxes going to support K-12 public schools, local governments, and roads.

December 15 is a crucial day for the state of Michigan because on that day, the process for medical marijuana licensure will begin. The licenses that will be granted are going to change the face of economics in the state of Michigan but with the new prospect for economic growth comes potential pitfalls that some people are overlooking. The reality is with a conservative Medical Marijuana Board in place, the applicants are going to have to come from different walks of life and getting licensure will not be an easy task. To delve deeper into the issue, we examined how licensure will affect the cannabis community and what we found out was that there is a lot of misinformation that is being spread. Let’s break down some of the issues that we as litigators will have to face for our clients:

I. Can out of state financing come in?

The state of Michigan is expecting a huge influx of revenues for the new entity but there are issues that need to be addressed. Ravi Gurumurthy, a successful attorney from Cadillac, Michigan, was asked about the issue. Gurumurthy stated, “What people do not understand is that cannabis is still illegal on the federal level. More importantly, if someone thinks that they are just going to be able to obtain out-of-state financing, they need to think again. There are Commerce Clause implications that could literally destroy Operating Agreements and projections could be nothing more than useless words on a page. The whole goal here is to generate income for the legislature and the citizens of Michigan; the non-domiciled individual will not be able to just come in and make a strong investment and just walk away. Our state and the United States Constitution alike will be tested and while there are many positives on the horizon, obtaining those benefits will be present many cases of first impression for our judiciary.”