Monthly Archives: February 2013

Neil Rockind in the News

Lawyer says client’s rights were violated in drug bust

A judge granted a defense attorney’s request Thursday for a hearing to determine if police violated his client’s rights when they seized marijuana from his home in December 2011.

Southfield attorney Neil Rockind is asking a Livingston County judge to dismiss the felony charges against his client, Dennis Keith Towne, because he says police violated his client’s rights by crossing into the curtilege around his home.

The issue was argued at the District Court level, and after hearing testimony, Judge Carol Sue Reader bound the case over to Circuit Court. Rockind now wants Circuit Judge Michael P. Hatty to quash Reader’s bind-over.

“I think you will see she made the wrong call and without all the evidence,” Rockind said.

At the March preliminary hearing, the defense did not present any witnesses, which is standard. However, Towne and his wife are expected to testify at the Feb. 26 evidentiary hearing, which will determine if police violated Towne’s Fourth Amendment rights by entering the curtilage.

Curtilage is a legal term for the area surrounding and associated with the domicile where the owner may have an expectation of privacy. Courts have disallowed evidence when they find an officer’s movements violate the curtilage of a defendant’s home.

Towne, of Hamburg Township, is charged with delivery or manufacture of a controlled substance.

A Michigan State Police trooper testified at a March hearing that officers went to Towne’s home in the 6500 block of Cunningham Drive in December 2011 because they were looking for the defendant’s son, who was wanted on an unrelated 10-count felony complaint.

The trooper said he began to see “an excessive amount of smoke coming from the chimney” as officers staked out the home after learning from Towne that his son was not there. He said the smell of “freshly burned marijuana” began to fill the air.

The trooper said he then saw Towne “literally shoving handfuls of marijuana into a fire.”

Officers immediately entered the home by breaking a window, and once inside found an 18-gallon plastic tote about one-quarter full of “processed marijuana” as well as 50-100 live plants in the basement, according to testimony. The marijuana — from seeds to full-grown plants — were found throughout the house, including in a toilet, the trooper said.

Authorities said they seized 75 marijuana plants along with 41 bags of marijuana and marijuana suckers that amounted to “pounds” of the illegal drug.

Meanwhile, the prosecution also wants the judge to consider a motion that prohibits the defense from mentioning medical marijuana at the trial.

Rockind said he will file a response arguing Towne is immune from prosecution under under the Michigan Medical Marihuana Act.

via Livingston Daily

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Ex-Eastpointe detective gets probation in misconduct case

MOUNT CLEMENS, Mich. – A former Eastpointe Police detective convicted of stealing seized items from an evidence locker and distributing them for cash and drugs has been sentenced to probation.

Detective Timothy Stopczynski was charged with one count of misconduct in office, five-year felony, and one count of embezzlement by an agent or trustee less than $20,000.

The embezzlement charge was dropped as part of a plea deal.

He was sentenced Tuesday to a year of probation and credit for spending one day in jail.

Stopczynski, 41, allegedly took tires, rims, slot machines, watches, and other items from the Eastpointe Police forfeiture shed and given them to a former confidential informant to fence for drugs and money.

Stopczynski served with the Eastpointe Police Department for 14 years. He resigned from the force in the wake of this investigation.

via Click On Detroit

Updated Doctor-Patient Relationship Laws – Going into Effect on April 1st, 2013

Here are the new rules regarding MMJ Doctor-Patient relationships. These go into effect April 1st, 2013.

NEW RULES ———> Doctor-Patient Relationship

PEOPLE v. MCQUEEN – Neil Rockind analyzes Supreme Court opinion – “Relax, it isn’t that bad.”

McQueen Is Not A Death Notice – It Is Just An Opinion

In a disappointing but not surprising opinion, the conservative branch of the Michigan Supreme Court found in favor of the State of Michigan against the Compassionate Apothecary in a civil injunction case that required the Compassionate Apothecary to close as a public nuisance.   Newspapers, journalists and headline writers are creating dramatic headlines and sub-headlines about the meaning of this opinion.  Put down the hari-kari knife, step away from the ledge and put down the cyanide kool-aid.  This opinion has very limited meaning for the vast majority of medical marijuana patients and caregivers and has very limited meaning in most of our cases.  How can that be, you might ask?  Let me explain.

Immunity Was The Issue in McQueen – Not The Affirmative Defense

The McQueen case was in the context of a civil case.  Not a criminal case.  This is extremely important.  In civil cases, which are different from criminal prosecutions, other issues at play.  In the McQueen case, the issues at play were whether the dispensary or club violated the public nuisance law and thus could be shut down.  It was not a criminal prosecution.  No one, not McQueen, not Taylor, the individuals behind the club, were charged with crimes.  McQueen involved a §4, i.e., claim pursuant to MCL 333.26424, immunity claim onlyThe McQueen majority focused its opinion on the immunity provisions contained within Section 4, i.e., MCL 333.26424, of the Michigan Medical Marijuana Act.  It went to great lengths to distinguish between §4 immunity and the §8 medical purpose affirmative defense”

Absent a situation triggering the affirmative defense of § 8 of the MMMA, § 4 sets forth the requirements for a person to be entitled to immunity  for the “medical use” of marijuana.  It is entitlement to that immunity—not the definition of “medical use”—that demonstrates that the person’s medical use of marijuana is in accordance with the MMMA.  Therefore, we turn to § 4 to determine whether patient-to-patient sales are entitled to that section’s provision of immunity.

In a footnote, footnote 52, the Court explained that this opinion was focused exclusively on §4 immunity and not §8, the medical purpose or affirmative defense:

These situations are limited to “any prosecution involving marihuana,” MCL 333.26428(a), a “disciplinary action by a  business or occupational or professional licensing board or bureau,” MCL 333.26428(c)(1),  or “forfeiture of any interest in or right to property,” MCL 333.26428(c)(2).  For further discussion of the § 8 affirmative defense, see part III(C) of this opinion.

In other words, the section that defense lawyers and those unfortunate enough to be charged with crimes have relied on in defense of cases, i.e., §8, were not at issue in the McQueen case.  At issue in the McQueen case, as I have been explaining for some time to those interested in listening, were whether “registered qualifying patient transfers of marijuana to another registered qualifying patient” were entitled to immunity protection under §4 of the Medical Marijuanat Act.  I was emboldened by the recent opinion of People v Green, and thought that the Green case was perhaps a harbinger of good things to come but , as it turns out, it was not.   The McQueen majority opinion ruling addresses these transfers but in a nuanced way.  It focuses on whether the transferring patient may claim immunity for the transfer and whether the receiving/acquiring patient may claim immunity for the transfer.  The McQueen majority concluded the transferring patient is not immune but that the acquiring patient may claim immunity but that the transferring patient may not.   As it explains in footnote 62:

Of course, a registered qualifying patient who acquires marijuana—whether from another registered qualifying patient or even from someone who is not entitled to possess marijuana—to alleviate  his own condition can still receive immunity from arrest, prosecution, or penalty because the § 4(d) presumption cannot be rebutted on that basis.  In this sense, § 4 immunity  is asymmetric: it allows a registered qualifying patient to obtain marijuana for his own medical use but does not allow him to transfer marijuana for another registered qualifying patient’s use.

As for the transferring patient, the McQueen majority makes clear that he/she is not entitled to immunity.  The Court focused on specific language in §4 to conclude that immunity is only available when the marijuana transfer is to alleviate the transferring patient’s debilitating condition and that only two (2) individuals are entitled to be presumed to have engaged in a lawful transfer entitled to immunity for the “receiving patient’s medical relief”:  1) the patient’s registered primary caregiver and/or 2) the receiving registered qualifying patient can claim immunity for a transfer.  Why?  Because, the Court says, any other individual transferring marijuana is not entitled to immunity because their transfer was not, per §4, for the receiving patient’s medical benefit.   In other words, transfers that comply with MCL 333.26424 are presumed to be for the benefit of the receiving patient’s medical benefit and the only people entitled to this presumption or immunity are the patient’s registered primary caregiver or the patient himself.  Anyone else transferring to the patient, cannot claim the immunity:

Defendants’ business facilitates patient-to-patient sales, presumably to benefit the transferee patient’s debilitating medical  condition or symptoms.  However, those transfers do not qualify for § 4 immunity  because they encompass marijuana-related conduct that is not for the purpose of alleviating the  transferor’s debilitating medical condition or its symptoms.  Because the defendants’ “medical use” of marijuana does not comply with the immunity provisions of §§ 4(a), 4(b), and 4(d), defendants cannot claim that § 4 insulates them from a public nuisance claim

In other words, the transferee can say that it was to alleviate his/her debilitating condition but another patient cannot say that is so for purposes of §4:  “Thus, § 4 immunity does not extend to a registered qualifying patient who transfers marijuana to another registered  qualifying patient for the transferee’s use because the transferor is not engaging in conduct related to marijuana for the purpose of relieving the transferor’s own condition or symptoms.”  McQueen opinion, p 18.  It is a personal right of the receiving patient and his primary caregiver.  No one else may claim that the transfer was for that patient’s medical benefit under §4.  In other words, the transferring patient is not transferring it for his own benefit.

Don’t Panic – It Isn’t As Bad As It Sounds

McQueen directly contradicts and I would suggest overrules Green.  So a transferring patient or other caregiver are not entitled to immunity under §4.  But what does it all mean?  Very little other than that transferors of marijuana other than a registered primary caregiver to his registered patients are not protected when they transfer or deliver marijuana.  Period.  Those acquiring marijuana may still receive immunity.  Registered primary caregivers may still transfer to their patients.  Registered primary caregivers may still grow for their patients.  Registered qualifying patients may still engage in medical use.  All of the above and more are entitled to immunity under MCL 333.26424.  McQueen does not alter the state of the law in this regard at all.

In fact, McQueen disabuses the Court of Appeals and many prosecutors in another important area as well – sales.  The McQueen majority specifically disagreed with the lower courts and prosecutors who contended that the fact that money exchanged hands renders any transfer or delivery unlawful.  According to the Supreme Court, the fact that money exchanged hands or that a sale took place, does not render the transaction or transfer unlawful.  McQueen page 12-13.  Sales do not violate Michigan Medical Marijuana Act.  McQueen 12-13.

What is important to important to remember is that even if these transfers are not protected under §4, they may be entitled to protection under MCL §333.26428, i.e., the affirmative defense section of the Michigan Medical Marijuana Act.  In other words, let’s be careful not to read the McQueen opinion as stating that all transfers of marijuana between patients or by individuals not connected through the registry are illegal.  The McQueen opinion does not state that – it does not even come close to stating as much.

SECTION 8 AFFIRMATIVE DEFENSE

Any transfer, even one that involves the transfer of money, may be entitled to protection under §8.  McQueen explicitly says as much:

Finally, even though § 4 does not permit defendants to operate a business that facilitates patient-to-patient sales of marijuana, our decision in Kolanek makes clear that § 8 provides separate protections for medical marijuana patients and caregivers and that one need not satisfy the requirements of § 4 immunity to be entitled to the § 8 affirmative defense, which allows “a patient and a patient’s primary caregiver, if any, [to] assert the

medical purpose for using marihuana as  a defense to any prosecution involving marihuana . . . .” However, by its own terms, § 8(a) only applies “as a defense to any prosecution involving marihuana . . . .”

Why didn’t McQueen and Taylor get to argue and why didn’t the Court address whether their conduct was protected by §8?  Because, the Court stated, §8 only applies in criminal prosecutions involving marijuana and neither McQueen nor Taylor were prosecuted.   Accordingly, they could not assert a defense under §8.

CONCLUSION

In short, had McQueen or Taylor been criminally prosecuted, they couldn’t claim immunity under §4 but they could assert a defense under §8.   Their transactions would not deemed unlawful or illegal merely because they occurred and the fact that money exchanged hands is meaningless.  They just can’t wave their cards and claim to be immune – they will have to come to court and defend themselves but, and this is a very important but, they will have the opportunity to do so.

The Entire McQueen Opinion Can Be Found Here

Why Police Lie Under Oath

THOUSANDS of people plead guilty to crimes every year in the United States because they know that the odds of a jury’s believing their word over a police officer’s are slim to none. As a juror, whom are you likely to believe: the alleged criminal in an orange jumpsuit or two well-groomed police officers in uniforms who just swore to God they’re telling the truth, the whole truth and nothing but? As one of my colleagues recently put it, “Everyone knows you have to be crazy to accuse the police of lying.”

But are police officers necessarily more trustworthy than alleged criminals? I think not. Not just because the police have a special inclination toward confabulation, but because, disturbingly, they have an incentive to lie. In this era of mass incarceration, the police shouldn’t be trusted any more than any other witness, perhaps less so.

That may sound harsh, but numerous law enforcement officials have put the matter more bluntly.  Peter Keane, a former San Francisco Police commissioner, wrote an article in The San Francisco Chronicle decrying a police culture that treats lying as the norm: “Police officer perjury in court to justify illegal dope searches is commonplace. One of the dirty little not-so-secret secrets of the criminal justice system is undercover narcotics officers intentionally lying under oath. It is a perversion of the American justice system that strikes directly at the rule of law. Yet it is the routine way of doing business in courtrooms everywhere in America.”

The New York City Police Department is not exempt from this critique. In 2011, hundreds of drug cases were dismissed after several police officers were accused of mishandling evidence. That year, Justice Gustin L. Reichbach of the State Supreme Court in Brooklyn condemned a widespread culture of lying and corruption in the department’s drug enforcement units. “I thought I was not naïve,” he said when announcing a guilty verdict involving a police detective who had planted crack cocaine on a pair of suspects. “But even this court was shocked, not only by the seeming pervasive scope of misconduct but even more distressingly by the seeming casualness by which such conduct is employed.”

Remarkably, New York City officers have been found to engage in patterns of deceit in cases involving charges as minor as trespass. In September it was reported that the Bronx district attorney’s office was so alarmed by police lying that it decided to stop prosecuting people who were stopped and arrested for trespassing at public housing projects, unless prosecutors first interviewed the arresting officer to ensure the arrest was actually warranted. Jeannette Rucker, the chief of arraignments for the Bronx district attorney, explained in a letter that it had become apparent that the police were arresting people even when there was convincing evidence that they were innocent. To justify the arrests, Ms. Rucker claimed, police officers provided false written statements, and in depositions, the arresting officers gave false testimony.

Mr. Keane, in his Chronicle article, offered two major reasons the police lie so much. First, because they can. Police officers “know that in a swearing match between a drug defendant and a police officer, the judge always rules in favor of the officer.” At worst, the case will be dismissed, but the officer is free to continue business as usual. Second, criminal defendants are typically poor and uneducated, often belong to a racial minority, and often have a criminal record.  “Police know that no one cares about these people,” Mr. Keane explained.

All true, but there is more to the story than that.

Police departments have been rewarded in recent years for the sheer numbers of stops, searches and arrests. In the war on drugs, federal grant programs like the Edward Byrne Memorial Justice Assistance Grant Program have encouraged state and local law enforcement agencies to boost drug arrests in order to compete for millions of dollars in funding. Agencies receive cash rewards for arresting high numbers of people for drug offenses, no matter how minor the offenses or how weak the evidence. Law enforcement has increasingly become a numbers game. And as it has, police officers’ tendency to regard procedural rules as optional and to lie and distort the facts has grown as well. Numerous scandals involving police officers lying or planting drugs — in Tulia, Tex. and Oakland, Calif., for example — have been linked to federally funded drug task forces eager to keep the cash rolling in.

THE pressure to boost arrest numbers is not limited to drug law enforcement. Even where no clear financial incentives exist, the “get tough” movement has warped police culture to such a degree that police chiefs and individual officers feel pressured to meet stop-and-frisk or arrest quotas in order to prove their “productivity.”

For the record, the New York City police commissioner, Raymond W. Kelly, denies that his department has arrest quotas. Such denials are mandatory, given that quotas are illegal under state law. But as the Urban Justice Center’s Police Reform Organizing Project has documented, numerous officers have contradicted Mr. Kelly. In 2010, a New York City police officer named Adil Polanco told a local ABC News reporter that “our primary job is not to help anybody, our primary job is not to assist anybody, our primary job is to get those numbers and come back with them.” He continued: “At the end of the night you have to come back with something.  You have to write somebody, you have to arrest somebody, even if the crime is not committed, the number’s there. So our choice is to come up with the number.”

Exposing police lying is difficult largely because it is rare for the police to admit their own lies or to acknowledge the lies of other officers. This reluctance derives partly from the code of silence that governs police practice and from the ways in which the system of mass incarceration is structured to reward dishonesty. But it’s also because police officers are human.

Research shows that ordinary human beings lie a lot — multiple times a day — even when there’s no clear benefit to lying. Generally, humans lie about relatively minor things like “I lost your phone number; that’s why I didn’t call” or “No, really, you don’t look fat.” But humans can also be persuaded to lie about far more important matters, especially if the lie will enhance or protect their reputation or standing in a group.

The natural tendency to lie makes quota systems and financial incentives that reward the police for the sheer numbers of people stopped, frisked or arrested especially dangerous. One lie can destroy a life, resulting in the loss of employment, a prison term and relegation to permanent second-class status. The fact that our legal system has become so tolerant of police lying indicates how corrupted our criminal justice system has become by declarations of war, “get tough” mantras, and a seemingly insatiable appetite for locking up and locking out the poorest and darkest among us.

And, no, I’m not crazy for thinking so.

via The New York Times