People v. King., Docket No. 294682.

• Decision Date: 03 February 2011
• Docket Number: Docket No. 294682.
• Citation: 804 N.W.2d 911,291 Mich.App. 503
• Parties: PEOPLEv.KING.
• Court: Court of Appeal of Michigan — District of US

291 Mich.App. 503

804 N.W.2d 911

PEOPLE

v.KING.

Docket No. 294682.

Court of Appeals of Michigan.

Submitted Nov. 4, 2010, at Lansing.Decided Feb. 3, 2011, at 9:00 a.m.

Bill Schuette, Attorney General, B. Eric Restuccia, Solicitor General, Randy O. Colbry, Prosecuting Attorney, and Sara Edwards, Assistant Prosecuting Attorney, for the people.Matthew R. Abel, Detroit, and Alan L. Kaufman, for defendant.Before: SAWYER, P.J., and FITZGERALD and SAAD, JJ.SAAD, J.

The prosecution appeals the trial court's order that dismissed two counts against defendant for the manufacture of a controlled substance (marijuana), MCL 333.7401(2)(d)(iii). For the reasons set forth in this opinion, we reverse and remand for further proceedings consistent with this opinion.

I. NATURE OF THE CASE

Defendant, who was arrested for illegally growing marijuana, possesses a registry identification card under the Michigan Medical Marihuana Act (MMMA), MCL 333.26421 et seq. , and claims that he is entitled to the limited protections of the MMMA because he complied with its statutory provisions. The trial court ruled that the charges against defendant must be dismissed because he satisfied the elements of the affirmative defense outlined in § 8 of the MMMA, MCL 333.26428. Though defendant timely raised a § 8 defense, he did not fulfill the requirements of § 8. Clearly, by its reference to § 7 of the MMMA, MCL 333.26427, § 8 required defendant to comply with other applicable sections of the MMMA, which includes the requirements set forth in § 4, MCL 333.26424, concerning the growing of marijuana. Furthermore, as a registered cardholder, defendant must comply with the provisions of § 4 concerning growing marijuana, MCL 333.26424(a). Also, defendant maintains, and the trial court erroneously ruled, that defendant complied with § 4 by growing the marijuana in an “enclosed, locked facility.” We disagree that defendant adhered to the requirements of § 4 of the MMMA and therefore hold that defendant is not entitled to the benefit of the protections of the MMMA. The trial court abused its discretion when it dismissed the charges against him.

II. FACTS

The Michigan State Police received an anonymous tip that someone was growing marijuana in the backyard of a house at 710 Grace Street in Owosso. On May 13, 2009, Detective Sergeant Brian Fox and Deputy Jed Eisenberger drove to the address and saw a chain-link dog kennel behind the house. Though the sides of the kennel were covered with black plastic, some areas of the kennel were uncovered and, using binoculars, Deputy Eisenberger could see marijuana plants growing inside.

Detective Fox and Deputy Eisenberger went to the door of the house and spoke to defendant, who produced a medical-marijuana card that was issued on April 20, 2009. The officers asked defendant to show them the marijuana plants, and defendant unlocked a chain lock on the kennel. The kennel was six feet tall, but had an open top and was not anchored to the ground. Defendant disclosed that he had more marijuana plants inside the house. After they obtained a search warrant, the officers found marijuana plants growing inside defendant's unlocked living room closet.

As noted, defendant was charged with two counts of manufacturing marijuana. After the prosecutor presented his proofs at the preliminary examination, defendant moved to dismiss the charges under the affirmative defense section of the MMMA. The district court denied defendant's motion and bound defendant over for trial. In the circuit court, defendant filed a motion to quash the bindover or suppress the evidence obtained during the search. He also sought to dismiss the charges on various grounds. Among other arguments, defendant maintained that the search warrant was invalid because it was based on hearsay. Defendant also sought to assert an affirmative defense under the MMMA. In response, the prosecutor argued that the search warrant was valid and that defendant had failed to comply with the MMMA because he did not keep the marijuana in an enclosed, locked facility pursuant to MCL 333.26424(a).

The trial court issued an opinion and order on September 30, 2009. The court ruled that, because defendant had a medical-marijuana registry identification card and kept “a legal quantity” of marijuana in an enclosed, locked facility, there was no probable cause to support the issuance of the search warrant for his home. Nonetheless, the court ruled that the evidence seized during the search should not be suppressed because the officers had acted in good-faith reliance on the warrant. However, the court held that the officers should not have seized the marijuana because defendant complied with the requirements of the MMMA. For the same reason, the court ruled that defendant was entitled to assert an affirmative defense under the MMMA, and it granted defendant's motion to dismiss the charges.

III. ANALYSIS

“We review a trial court's decision to grant or deny a motion to dismiss charges for an abuse of discretion.” People v. Kevorkian, 248 Mich.App. 373, 383, 639 N.W.2d 291 (2001). The prosecution contends that the trial court incorrectly interpreted the meaning of “enclosed, locked facility” in MCL 333.26424(a) and MCL 333.26423(c) and that it erred when it ruled that defendant had complied with the statute. We review de novo questions of statutory interpretation. People v. Feezel, 486 Mich. 184, 205, 783 N.W.2d 67 (2010) (opinion by Cavanagh, J.). “When interpreting statutes, our goal is to give effect to the intent of the Legislature by reviewing the plain language of the statute.” People v. Perkins, 473 Mich. 626, 630, 703 N.W.2d 448 (2005).

Again, the prosecution charged defendant with violating Michigan's controlled substances act by growing marijuana, but defendant maintains that he is entitled to the protections from prosecution laid out in the recently enacted MMMA. By passing statutes that criminalize the possession, use, and manufacture of controlled substances, including marijuana, our Legislature and Congress have determined that such substances are harmful and prohibited.¹ As Judge O'Connell observed in his concurrence in People v. Redden, 290 Mich.App. 65, 92, 799 N.W.2d 184 (2010):

[T]he MMMA does not create any sort of affirmative right under state law to use or possess marijuana. That drug remains a schedule 1 controlled substance under the Public Health Code, MCL 333.7212(1)(c), meaning that “the substance has high potential for abuse and has no accepted medical use in treatment in the United States or lacks accepted safety for use in treatment under medical supervision,” MCL 333.7211. The MMMA does not repeal any drug laws contained in the Public Health Code, and all persons under this state's jurisdiction remain subject to them. Accordingly, mere possession of marijuana remains a misdemeanor offense, MCL 333.7403(2)(d), and the manufacture of marijuana remains a felony, MCL 333.7401(2)(d).By its terms, the MMMA does not abrogate state criminal prohibitions of the manufacturing of marijuana. Rather, the MMMA “merely provides a procedure through which seriously ill individuals using marijuana for its palliative effects can be identified and protected from prosecution under state law.” Redden, 290 Mich.App. at 93, 799 N.W.2d 184 (O'Connell, P.J., concurring). Although these individuals continue to violate the Public Health Code by using marijuana, the MMMA sets forth narrow circumstances under which they can avoid criminal liability. In other words, the MMMA constitutes a determination by the people of this state that there should exist a very limited, highly restricted exception to the statutory proscription against the manufacture and use of marijuana in Michigan. As such, the MMMA grants narrowly tailored protections to qualified persons as defined in the act if the marijuana is grown and used for certain narrowly defined medical purposes. Further, the growing of marijuana is tightly constrained by specific provisions that mandate how, where, for what purpose, and how much marijuana may be grown.

Section 8 of the MMMA provides a defendant with an opportunity to assert a defense to the controlled substance laws if the conditions set forth in § 8 are followed. MCL 333.26428. Moreover, § 8 incorporates by reference other provisions of the MMMA with which a defendant must comply. Section 8 specifically states that a patient may assert a medical purpose defense to any marijuana prosecution, “[e]xcept as provided in section 7....” MCL 333.26428(a). Section 7(a) provides that “[t]he medical use of marihuana is allowed under state law to the extent that it is carried out in accordance with the provisions of this act.” MCL 333.26427(a) (emphasis added). In Redden, this Court held that the statute permits an unregistered patient to assert the affirmative defense under § 8 if he or she meets the requirements of § 8. Redden, 290 Mich.App. at 81, 85, 799 N.W.2d 184. We hold that § 8 permits a “registered qualifying patient” to raise an affirmative defense under § 8, just as an unregistered defendant may under Redden. We further hold that the express reference to § 7 and the statement in § 7(a) that medical use of marijuana must be carried out in accordance with the provisions of the MMMA require defendant to comply with the provisions of § 4 concerning growing marijuana. And in any case, § 4 applies to defendant because he grew marijuana under a claim that he is a qualifying patient in possession of a registry identification card.² We hold that because defendant did not comply with § 4, he also failed to meet the requirements of § 8 and, therefore, he is not entitled to the affirmative defense in § 8 and is not entitled to dismissal of the charges.

Section 4(a), MCL 333.26424(a), provides, in relevant part:

A qualifying patient who has been issued and possesses a registry identification card shall not be subject to arrest, prosecution, or penalty in any...