Attorney general: Police don’t have to return medical marijuana

As ridiculous as this opinion is, and as little as I want to publicize it, it is important and needs to be blogged.

By Ann Zaniewski
For The News-Herald

The state’s appellate court has said a trial judge was correct in precluding two Oakland County men from referencing the Michigan Medical Marihuana Act during their trials.

The ruling was followed by an attorney general opinion that will also impact medical marijuana patients and caregivers. Michigan Attorney General Bill Schuette said this week that a provision of the medical marijuana act that prohibits police from seizing marijuana used by patients conflicts with, and is trumped by, federal law.

“As a result, law enforcement officers are not required to return marihuana to a patient or caregiver,” he wrote.

Schuette said officers who return marijuana to patients or caregivers are exposing themselves to potential criminal penalties under the federal Controlled Substances Act for the distribution of marijuana or aiding and abetting.

Gerald Fisher, a professor at Cooley Law School in Auburn Hills, wrote an extensive paper last year on the Michigan Medical Marihuana Act for the Michigan Municipal League and the Michigan Townships Association.

He said Schuette’s opinion is significant because state police are bound by it, and local police departments will probably follow.

“The idea is by returning it, you’re distributing, and distribution (of marijuana) under federal law is a crime,” he said. “There is a federal statute that says that officials are immune from prosecution in the enforcement of marijuana statutes, or drug statutes. However, there have been decisions on that immunity, and the immunity only applies where officials are acting consistent with federal law.”

Rick Thompson, editor of “Michigan Medical Marijuana Magazine,” was critical of Schuette’s opinion. He called it “extremely burdensome, unwieldy, poorly conceived” and an attempt to weaken the state’s marijuana act.

“This opinion will create a bigger problem for law enforcement,” he said. “Every time a medical marijuana patient is pulled over for speeding, and officers ask them if they have drugs or weapons in their car, a truthful answer will mean they have to lose all of their medical marijuana.

“Secondarily, this officer that forfeits the medical marijuana on the roadside has to turn it into the desk sergeant at the end of the shift with no paperwork, no arrests, no record of where he got it. How’s that going to work?” he said.

A spokeswoman for Schuette was not immediately available Friday; Schuette’s office was closed for Veterans Day.

Also, the Michigan Court of Appeals issued an opinion this week in the case involving Michael Scott Danto and Andrew Benjamin Nater, who, along with a third person, are facing drug charges.

The men, who were in their 20s at the time, shared a rental house in Ferndale that police searched following an August 2010 raid of a medical marijuana club in Waterford Township called Everybody’s Cafe. Authorities said they discovered a number of marijuana plants inside the house.

Danto and Nater are registered medical marijuana patients, and Nater was also a caregiver, according to their attorneys. They were at the cafe.

In its opinion, the Court of Appeals agreed with prosecutors who argued that the trial court judge abused his discretion in barring the admission of evidence of other acts committed by Nater and Danto.

According to the opinion, prosecutors wanted to admit evidence that Danto was found at the cafe at a table with 323 grams of marijuana packaged for sale and other items, and that a document indicated that he had paid an entrance fee to sell marijuana at the cafe. Danto contended that the evidence was unfairly prejudicial.

Prosecutors also wanted to admit evidence that Nater had sold marijuana to undercover officers three times in the month proceeding the search of the house in Ferndale. Nater argued that allowing the evidence while precluding references to medical marijuana at trial would deny him his constitutional right to present a defense.

The appellate judges said: “As in (the case involving Danto), we agree with the prosecution that the other acts evidence was offered for proper purposes of establishing Nater’s knowledge of and control over the marijuana found in his home.” The appeals court reversed the lower court’s decision.

Additionally, the Court of Appeals opinion says that the marijuana found at the house was not kept in a locked, enclosed facility as is required by the Medical Marihuana Act. Because of that, the court said, the trial judge’s order precluding the defendants from asserting a Medical Marihuana Act defense and making references to the act at trial was not erroneous.

“We’re disappointed in the opinion, but not surprised,” said Barry Resnick, Nater’s attorney. “We intend to appeal the decision to the Michigan Supreme Court, where all the cases concerning medical marijuana will end up.”

Two appellate judges — Jane E. Markey and Henry William Saad — authored the majority opinion. The third appellate judge, Elizabeth Gleicher, wrote separately that she concurred in part and dissented in part with her colleagues.

Gleicher wrote that prosecutors in the case have acknowledged that the mention of medical marijuana would be necessary to explain the circumstances connected with the crime.

“I am mystified that the majority nevertheless holds that the prosecution may introduce evidence invoking the term medical marihuana, but defense may not,” she wrote. “Defendants aptly note that their ability to cross-examine these witnesses will be limited to the point of absurdity if the trial court’s order remains in place — the prosecution will be able to elicit testimony regarding the officers’ undercover personas as medical marihuana purchasers, but defendants will be precluded from repeating those terms in cross-examination. …”

“To prevent prejudice to defendants, I would reverse that portion of the trial court’s March 8 one-sided order precluding defendants’ reference to the MMA or ‘medical marijuana’ at trial.”

via The News-Herald

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