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Thursday, September 20, 2012
By Michael Nichols
Categories: Medical Marijuana
On August 28, 2012, the Michigan Court of Appeals released an opinion that held that police officers are not required to determine if a suspect is a medical marihuana patient before seeking a search warrant. In People v Brown, the defendant was a medical marihuana patient and was growing marihuana inside his residence. At some point officers conducted a search of Mr. Brown’s trash as the trash sat curbside. The officers found a marihuana stem and documents linking the trash to Mr. Brown. The officers then sought out a search warrant and filled out an affidavit requesting a magistrate to issue a search warrant. The officers never investigated the possibility that Mr. Brown was a medical marihuana patient before filling out the affidavit.
The search warrant was issued and executed. During the search, officers found 8 plants and loose marihuana. Mr. Brown was then charged with manufacturing marihuana and subsequently filed a motion to suppress the evidence based upon the fact that the officers did not determine Mr. Brown’s status as a medical marihuana patient.
The purpose of an affidavit is to establish probable cause that evidence of a crime will be found in the stated place. Mr. Brown argued that since the Michigan medical marihuana act (MMMA) was enacted a marihuana stem does not establish probable cause of criminal activity because some people are allowed to possess marihuana.
The Court of Appeals held that officers are not required to investigate the possibility that a suspect is in fact a medical marihuana patient when seeking a search warrant and the court stated that “[t]he possession, manufacture, use, creation, and delivery of marijuana remain illegal in this state, even after the enactment of the MMMA. Thus, we conclude that to establish probable cause, a search-warrant affidavit need not provide facts from which a magistrate could conclude that a suspect’s marijuana-related activities are specifically not legal under the MMMA.”
This case represents yet another opinion that fails to protect the citizens of Michigan who are sick and use marihuana as medicine. “If an officer finds a prescription bottle for pain pills in someone’s trash does that mean that there is probable cause of criminal activity? Wouldn’t it make since that the officers first check to see if the suspect was allowed to possess the pills before they invade the sanctity of a person’s home ?” asks attorney Joshua Covert. This decision puts all MMMA patients at risk of an intrusive search of their residence.
If you are a MMMA patient and have questions involving your rights as a MMMA patient call the Nichols Law Firm today at 517-432-9000 and speak with an attorney who works hard to stay on top of the ever changing MMMA landscape.