People v. Carlton, Docket No. 321630.

• Decision Date: 24 November 2015
• Docket Number: Docket No. 321630.
• Citation: 313 Mich.App. 339,880 N.W.2d 803
• Parties: PEOPLE v. CARLTON.
• Court: Court of Appeal of Michigan — District of US

313 Mich.App. 339

880 N.W.2d 803

PEOPLE

v.CARLTON.

Docket No. 321630.

Court of Appeals of Michigan.

Submitted Oct. 14, 2015, at Lansing.

Decided Nov. 24, 2015, at 9:15 a.m.

Bill Schuette, Attorney General, Aaron D. Lindstrom, Solicitor General, and Risa N. Hunt–Scully, Prosecuting Attorney, for the people.

Alane & Chartier, PLC, Lansing (by Mary Chartier ), for defendant.

Before: M.J. KELLY, J., and MURRAY and SHAPIRO, JJ.

M.J. KELLY, P.J.

In this dispute over the proper interpretation of the Michigan Medical Marihuana Act,¹ see MCL 333.26421 et seq.

, the prosecution appeals by leave granted the circuit court's order affirming the district court's decision to dismiss the charges against defendant, Robert Michael Carlton, and denying the prosecution's request to amend the complaint. On appeal, we must determine whether the immunity and defenses provided under the Medical Marihuana Act apply to a person who smokes marijuana in his or her own car while that car is parked in the parking lot of a private business that is open to the general public. We conclude that the protections do not apply under those circumstances. We also conclude that the circuit court erred when it affirmed the district court's denial of the prosecution's motion to amend the complaint. Accordingly, for the reasons more fully explained later in this opinion, we reverse and remand for further proceedings.

I. BASIC FACTS

The parties do not dispute the basic facts. In August 2013, Carlton went to Soaring Eagle Casino and parked his car in the casino's parking lot. At around 11:30 at night, security personnel, who were monitoring the casino's live-feed cameras, saw Carlton smoking what they believed to be marijuana inside his car. The security personnel called police officers and the officers went to the parking lot to investigate. Carlton admitted to the officers that he had been smoking marijuana and the officers saw a marijuana roach on the car's dashboard. The officers searched the car and found four bags of marijuana in a Styrofoam cooler that was on the floor board of the front passenger's seat. Carlton was the only person in the car at the time.

The prosecutor charged Carlton with misdemeanor possession of marijuana premised on the evidence that Carlton was smoking marijuana in a public place. MCL 333.7403(2)(d)

. Carlton's trial lawyer moved to dismiss the charge before the district court.

The district court held a hearing on the motion in October 2013. Carlton's lawyer stated that the evidence showed that Carlton was validly registered as a patient under the Medical Marihuana Act and was smoking in his car. Because his car was not a place open to the public, she argued that Carlton was immune from prosecution under § 4 of the act. See MCL 333.26424(a)

. The prosecutor disagreed and argued that the fact that Carlton was in his car was irrelevant; the car was located in the casino's parking lot, which is a public place. The prosecutor noted that the act specifically provides that it does not permit registered patients to smoke marijuana in a public place. See MCL 333.26427(b)(3)(B). Accordingly, he maintained, Carlton was not entitled to immunity under the act. The prosecutor also requested leave to amend the complaint to add a charge of improperly transporting medical marijuana. See MCL 750.474(1).

The district court issued an opinion and order in November 2013. The district court determined that a person is not in a public place when he or she is in his or her car, even if the car is parked in a parking lot that is open to the public. The district court granted Carlton's motion for that reason. The district court denied the prosecutor's request for leave to amend the complaint.

The prosecution appealed the district court's decision in the circuit court. The prosecution argued that the district court erred when it determined that a car is not a public place even when parked in a public parking lot. The prosecution also argued that the district court abused its discretion when it denied leave to amend the complaint.

The circuit court held a hearing on the appeal in February 2014 and issued its opinion and order in March 2014. The circuit court agreed with the district court's ruling that a privately owned automobile is not a public place within the meaning of MCL 333.26427(b)(3)(B)

. For that reason, the circuit court affirmed the district court's decision to dismiss the charge and deny leave to amend.

The prosecution then appealed in this Court and this Court granted leave in September 2014, but only to consider whether the circuit court erred when it affirmed the district court's denial of the prosecution's motion for leave to amend.² The prosecution appealed this Court's order to our Supreme Court in October 2014. The prosecution asked the Supreme Court to remand the matter to this Court for consideration of both issues. In February 2015, the Supreme Court granted the prosecution's request for a remand to this Court for consideration of both issues.

See People v. Carlton, 497 Mich. 957, 858 N.W.2d 467 (2015)

.

II. MOTION TO DISMISS

A. STANDARD OF REVIEW

The prosecution first argues that the lower court erred when it interpreted the phrase “any public place,” as used in MCL 333.26427(b)(3)(B)

, to exclude privately owned cars that are parked in parking lots that are open to the general public. This Court reviews de novo whether the trial court properly interpreted and applied the Medical Marihuana Act. People v. Anderson (On Remand), 298 Mich.App. 10, 14–15, 825 N.W.2d 641 (2012).

B. THE PUBLIC–PLACE EXCEPTION

A “qualifying patient who has been issued and possesses a registry identification card” is generally immune from prosecution for possession of medical marijuana under § 4 of the act. MCL 333.26424(a)

. For purposes of this appeal, we assume that Carlton is a qualifying patient and had in his possession a valid registry identification card when he smoked the marijuana underlying the charge at issue. See MCL 333.26423(i) and (j). Accordingly, Carlton could qualify for immunity from prosecution under § 4. Carlton might also be able to assert “the medical purpose for using” marijuana as a defense, under § 8 of the act, to the prosecution for possessing marijuana. See MCL 333.26428(a).

Although the act provides immunity under § 4 and a defense under § 8, both the immunity and defense provisions are subject to limitation. When the electors approved the Medical Marihuana Act, they provided that the “medical use of marihuana is allowed” only to the extent that the medical use was “carried out in accordance” with the act. MCL 333.26427(a)

. They also specifically stated that the act does not “permit any person” to smoke marijuana “in any public place.” MCL 333.26427(b)(3)(B). Because the act cannot be interpreted to “permit” a person to smoke marijuana in any public place and the medical use of marijuana is allowed—that is, permitted—only to the extent that it is carried out in accordance with the act, it necessarily follows that any person who smokes marijuana in “any public place” is not entitled to the immunity provided under § 4. Similarly, the electors stated that the defense described under § 8 applied to every prosecution involving marijuana “[e]xcept as provided” under MCL 333.26427(b). MCL 333.26428(a). These provisions in effect create an exception to the protections afforded under § 4 and § 8 of the act for situations in which the patient engages in the conduct listed under MCL 333.26427(b). Consequently, if Carlton was smoking marijuana in a public place, he would not—as a matter of law—be entitled to assert either the immunity provided under § 4, or the defense provided under § 8, as a challenge to his prosecution for possession of marijuana in violation of MCL 333.7403(2)(d)

.

It is undisputed that Carlton was smoking marijuana in plain sight while seated in his own car and that his car was parked in a parking lot that was open to the public. On appeal, the parties ask this Court to interpret the phrase “public place,” as used MCL 333.26427(b)(3)(B)

, by referring to cases involving other crimes, such as gross indecency, see People v. Lino, 447 Mich. 567, 527 N.W.2d 434 (1994), or disorderly conduct, see People v. Favreau, 255 Mich.App. 32, 661 N.W.2d 584 (2003), which involve acts done in public or in a public place, or by examining the privacy expectations informing search and seizure cases, see United States v. Jones, 565 U.S. ––––, 132 S.Ct. 945, 181 L.Ed.2d 911 (2012)

. We do not agree that the phrase “public place” has acquired a technical or peculiar meaning in the law. See People v. Bylsma, 493 Mich. 17, 31, 825 N.W.2d 543 (2012). Rather, this phrase must be given its plain and ordinary sense, as it would have been understood by the electors. See People v. Mazur, 497 Mich. 302, 308, 872 N.W.2d 201 (2015).

In adopting the Medical Marihuana Act, the electors balanced the needs of persons suffering from medical conditions, who might benefit from the medical use of marijuana, against the public's continued interest in restraining the harmful effects of recreational marijuana use. See MCL 333.26422

; see also People v. Redden, 290 Mich.App. 65, 93, 799 N.W.2d 184 (2010) (O'connell , P.J., concurring) (“[T]he [Medical Marihuana Act] reflects the practical determination of the people of Michigan that, while marijuana is classified as a harmful substance and its use and manufacture should generally be prohibited, law enforcement resources should not be used to arrest and prosecute those with serious medical conditions who use marijuana for its palliative effects.”). The electors chose to exclude patients who smoke medical marijuana in any public place from the protections of the act as part of the balancing of these interests, and, presumably, to assure the public and voters that the smoking of marijuana—even for medical purposes—would not intrude into the public sphere. MCL 333.26427(b)(3)(B)

. A “public place” is generally understood to be...