Criminal Law- A valid registration card is not dispositive concerning § 4 immunity

By: Agenique Smiley in Criminal Law, Michigan Court of Appeals, Michigan Court of Appeals, Most Important Opinions May 11, 2017

A party is entitled to § 4 immunity only if he or she is in full compliance with the MMMA, which includes its definitions of both a “patient” and a “caregiver.” If a party’s status as either is revoked, failure by the Secretary of State to revoke the party’s registration card does not afford him or her immunity from prosecution.

 ‘People v Tackman’ and ‘People v. Horner’

Defendant Tackman obtained a card on October 19, 2011, allowing him to use medical marijuana as a patient. Sometime before September 10, 2014, Tackman also became a licensed medical marijuana caregiver, although the number of patients he served overall is unclear; Tackman asserted that on September 10, 2104, he served two valid medical marijuana cardholders.

On or about May 1, 2014, Tackman was convicted of delivery or manufacture of marijuana, MCL 333.7401(2)(d)(iii), a felony. Tackman was placed on probation under terms which allowed him to continue being a caregiver until Mid-August of 2014.

Defendant Horner was granted a card for personal use of medical marijuana in 2012 and 2013. In 2013, he was also granted a Michigan Medical Marihuana Act (MMMA) license to act as a caregiver for up to five patients. On or about November 1, 2013, Horner was convicted of maintaining a drug house, MCL 333.7405(1)(d), and the felony of delivery or manufacture of marijuana, MCL 333.7401(2)(d)(iii).

Horner was placed on probation and an extended delay of sentence term whose terms prohibited him from “us[ing] or possess[ing] any controlled substance or drug paraphernalia, unless prescribed for [him] by a licensed physician, or be[ing] with anyone [he] know[s] to possess these items,” but allowing marijuana use “so long as he has a valid medical marijuana card.”

Tackman’s second offense

On or about September 9, 2014, Officer John May drove by Tackman’s home and noted the smell of marijuana coming from the home. He also noted a garage door covered in plywood and three air conditioners on the east side of the garage. Officer May contacted Tackman’s probation officer and the two of them went to Tackman’s home on September 10, 2014, to conduct a search.

The search revealed what May termed a “marijuana grow operation” including a dehumidifier and glass pipe, suspected (and later confirmed) cocaine residue, 36 marijuana plants, pieces of marijuana, and other marijuana, as well as ammunition for guns.

The Michigan State Police Crime lab identified 21 marijuana plants and 81.1 grams of marijuana. On the basis of these findings, the prosecution issued four criminal charges against Tackman as a second habitual offender, MCL 769.10.

Horner’s second offense

May received information from officers who had been sent to Horner’s home on August 12, 2014, to respond to an alarm that they noticed an odor of growing marijuana coming from Horner’s detached garage. Another officer was in the area of Horner’s home on September 9, 2014, and noted an odor of marijuana, and saw air conditioners running which was suspicious in light of the cooler temperature. This information was also relayed to May.

May obtained a search warrant for Horner’s home and executed the same on September 18, 2014. When he and other officers arrived, defendant Steven Vantol was inside the garage. Also inside the garage, May found 36 marijuana plants (21 of which were identified as such by the controlled substances unit), drug paraphernalia, and ammunition for a 45 caliber weapon. Horner was charged as a third habitual offender.

Trial court’s decision

Defendants Horner’s and Tackman’s cases proceeded in tandem. Both filed motions to dismiss count I of their respective informations, involving delivery or manufacture of marijuana, pursuant to § 4 of the MMMA, MCL 333.26424. Both asserted that they were “licensed medical marijuana cardholder[s],” who acted as “caregiver[s],” and “possessed” and grew less than the maximum amount of medical marijuana permitted under the act. Both claimed immunity from prosecution for the delivery or manufacture of marijuana.

The prosecution admitted that defendant Tackman was a medical marijuana patient, but denied that he had a valid caregiver license on the date that his home was searched, on the ground that he could not act as a caregiver after August 20, 2014, under the terms of his probation.

The prosecution further maintained that Tackman did not qualify for § 4 patient immunity because he possessed more marijuana than the MMMA permitted a medical marijuana patient.

Similarly, the prosecution admitted that defendant Horner was a medical marijuana patient, but denied that he had a valid caregiver license on the date that his home was searched on the ground that Horner’s November 1, 2013, felony drug convictions left him ineligible to maintain such a license.

Both defendants also filed motions to suppress the evidence recovered in the searches of their respective homes. Defendant Tackman argued that his probation officer lacked authority to search his home. Tackman additionally asserted that he was a licensed MMMA caregiver on the day of the search, which status legally allowed him to possess marijuana.

Defendant Horner asserted that the search warrant was not supported by probable cause and that he was a “licensed medical marijuana patient . . . and . . . caregiver” on the date that his home was searched.

The trial court found that Horner had MMMA “immunity” because “at all times during these proceedings . . . [d]efendant [Horner] was vested with a care card under the” MMMA. And, the trial court found that “there is no dispute” that the amount of marijuana found was within the amounts authorized by the statute.

Accordingly, the trial court granted Horner’s motion to dismiss and then dismissed all charges against him.

The trial court similarly concluded that Tackman was immune under the MMMA. Accordingly, it granted Tackman’s motion to dismiss and then dismissed all charges against him.

These appeals followed.

§ 4 immunity

It is undisputed that both Tackman and Horner had been convicted of a felony prior to the September 2014 searches of their homes. Thus, neither was eligible for § 4(b) caregiver immunity. The MMMA defines a caregiver as one who “has not been convicted of any felony within the past 10 years and has never been convicted of a felony involving illegal drugs.” Neither Tackman nor Horner meet that definition.

Neither defendant Tackman nor defendant Horner were eligible for § 4(a) patient immunity because each exceeded the “volume limitations” for a patient. People v Hartwick, 498 Mich 192, 201; 870 NW2d 37 (2015). § 4(a) specifies that patients may possess up to only “2.5 ounces of usable marijuana” and, if lacking a caregiver, up to “12 marihuana plants.” MCL 333.26424(a).

The MMMA provides no basis for the trial court’s finding that Tackman and Horner retained immunity from prosecution because their registration cards had not been revoked, and the court cited no MMMA provision or case-law supporting this conclusion. Neither party on appeal puts forward any case-law or statutory provision supporting that aspect of the decision below.

Because neither defendant qualified for the MMMA’s § 4 immunity, the trial court abused its discretion in dismissing defendants’ cases on this basis. People v Waterstone, 296 Mich App 121, 132; 818 NW2d 432 (2012).

‘People v Vantol’

When Officer May executed a search warrant at defendant Horner’s home on September 18, 2014, he found defendant Steven Vantol inside Horner’s garage. Vantol, Horner’s neighbor, admitted to watering the marijuana plants at Horner’s home for him on several occasions while Horner was gone. Vantol was thereafter charged with one felony count of manufacturing marijuana contrary to MCL 333.7401(2)(d)(iii), second offense. There is no evidence that defendant Vantol ever acted as a patient or caregiver under the MMMA.

Vantol filed a motion to suppress the evidence recovered in the search of Horner’s home, asserting the warrant as not issuing from probable cause. Vantol further argued that the trial court should quash the information because the prosecution failed to establish probable cause at the preliminary hearing that he manufactured marijuana.

The trial court granted Vantol’s motion to dismiss pursuant to the MMMA. The trial court explained that because Horner had a valid care giver card from the Secretary of State that had not been revoked, Horner was legitimately in business as far as the MMMA is concerned, and thus that Vantol also came under the protections of the MMMA.

 §4 immunity

Vantol asked the trial court to dismiss his charge under § 4 because he was acting as defendant Horner’s agent at the time of the instant offenses.

Horner did not qualify for MMMA immunity because he possessed more marijuana than allowed a single patient, and did not meet the definition of a “caregiver.” Because Horner did not qualify for immunity, no agent of his may claim immunity derived from Horner.

Conclusion

Reversed and remanded for proceedings not inconsistent with this opinion. We do not retain jurisdiction.

People v. Tackman; MiLW No. 07-94619, 7 pages; Michigan Court of Appeals published per curiam; Cavanagh, J., Sawyer, J., Servitto, J.; On appeal from the Bay Circuit Court; Sylvia Linton for appellant; Matthew Reyes for appellee.