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holding that the defendant had no right to assert the immunity provided by § 4 because it was undisputed that he had been convicted of a disqualifying felony
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Nos. 330654, 330656, 331874.
05-02-2017
PEOPLE of the State of Michigan, Plaintiff–Appellant, v. Vernon Bernhardt TACKMAN, Jr., Defendant–Appellee. People of the State of Michigan, Plaintiff–Appellant, v. Terry Lawrence Horner, Defendant–Appellee. People of the State of Michigan, Plaintiff–Appellant, v. Steven Michael Vantol, Defendant–Appellee.
Bill Schuette, Attorney General, Aaron D. Lindstrom, Solicitor General, Kurt C. Asbury, Prosecuting Attorney, and Sylvia L. Linton, Assistant Prosecuting Attorney, for the people. Reyes & Bauer (by Matthew L. Reyes ) for Vernon B. Tackman, Jr., and Terry L. Horner. Kenneth M. Malkin for Steven M. Vantol.
Bill Schuette, Attorney General, Aaron D. Lindstrom, Solicitor General, Kurt C. Asbury, Prosecuting Attorney, and Sylvia L. Linton, Assistant Prosecuting Attorney, for the people.
Reyes & Bauer (by Matthew L. Reyes ) for Vernon B. Tackman, Jr., and Terry L. Horner.
Kenneth M. Malkin for Steven M. Vantol.
Before: Cavanagh, P.J., and Sawyer and Servitto, JJ.
PER CURIAM.In these consolidated appeals, the prosecution appeals as of right the trial court's orders dismissing the criminal charges that had been filed against defendants Vernon B. Tackman, Jr., Terry L. Horner, and Steven M. Vantol, under the provisions of the Michigan Medical Marihuana Act (MMMA), MCL 333.26421 et seq . We reverse in all three cases and remand for proceedings not inconsistent with this opinion.
The spelling "marihuana" will be used when quoting the MMMA in deference to the spelling employed therein. Otherwise, the more common spelling, i.e., "marijuana," will be used. See People v. Carruthers, 301 Mich.App. 590, 593 n. 1, 837 N.W.2d 16 (2013).
When discussing the MMMA, we refer to the most recent version of the statute. See MCL 333.26421 et seq., as amended by 2016 PA 283. We note that any language or organizational differences between the MMMA version in effect during the period relevant to the charged offenses and the current version of the MMMA do not affect our analysis of the issues.
I. DOCKET NOs. 330654 AND 330656
Tackman was issued a registry identification 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 qualifying patients who possessed medical marijuana cards. On or about May 1, 2014, Tackman was convicted of delivery or manufacture of less than 5 kilograms or fewer than 20 plants of marijuana, MCL 333.7401(2)(d)(iii ), a felony. Tackman was placed on probation under terms that allowed him to continue being a caregiver until the middle of August 2014.
Horner was issued a registry identification card for personal use of medical marijuana in 2012 and 2013. In 2013, he was also granted an 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 less than 5 kilograms or fewer than 20 plants of marijuana, MCL 333.7401(2)(d)(iii ). Horner was placed on probation and the court delayed sentencing. The terms of Horner's probation prohibited him from "us[ing] or possess[ing] any controlled substances or drug paraphernalia, unless prescribed for [him] by a licensed physician, or be[ing] with anyone [he] know[s] to possess these items" but allowed Horner to use marijuana "so long as he has a valid medical marijuana card."
On or about September 9, 2014, Hampton Township Police Officer John May, Jr., drove by Tackman's home and noted the smell of marijuana coming from the home. He also noted that the garage door was covered with plywood and that there were three air conditioners on the east side of the garage. May contacted Tackman's probation officer and the two of them searched Tackman's home on September 10, 2014. The search revealed what May termed a marijuana "grow operation" including dehumidifiers and glass pipe, suspected (and later confirmed) cocaine residue, 36 marijuana plants, pieces of marijuana, other marijuana, and ammunition for guns. From the items transported to them, 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-offense habitual offender, MCL 769.10 : (1) delivery or manufacture of 5 kilograms or more but less than 45 kilograms or 20 plants or more but fewer than 200 plants of marijuana, MCL 333.7401(2)(d)(ii ), second or subsequent offense, MCL 333.7413(2), (2) possession of firearm ammunition by a felon, MCL 750.224f(6), (3) maintaining a drug house, MCL 333.7405(1)(d) and MCL 333.7406, second or subsequent offense, and (4) possession of less than 25 grams of a narcotic, MCL 333.7403(2)(a)(v ), second or subsequent offense.
May received information from officers who had responded to an alarm at Horner's home on August 12, 2014, that they had 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. The officer also noticed that air conditioners were running, which was suspicious in light of the cool 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, 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. On the basis of these findings, Horner was charged as a third-offense habitual offender, MCL 769.11, with delivery or manufacturing of 5 kilograms or more but less than 45 kilograms or 20 plants or more but fewer than 200 plants of marijuana, MCL 333.7401(2)(d)(ii ), second or subsequent offense, and possession of firearm ammunition by a felon, MCL 750.224f(6).
Horner's and Tackman's cases proceeded in tandem. Both Horner and Tackman moved to dismiss Count I of their respective informations, involving delivery or manufacture of marijuana, pursuant to § 4 of the MMMA, MCL 333.26424, known as the immunity provision. 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 MMMA. On this basis, both Horner and Tackman claimed immunity from prosecution for the delivery or manufacture of marijuana.
The prosecution admitted that Tackman was a qualifying medical marijuana patient but denied that he had a valid caregiver license on the date that his home was searched because Tackman 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 had possessed more marijuana than the MMMA permitted a medical marijuana patient. Similarly, the prosecution admitted that defendant Horner was a qualifying medical marijuana patient, but denied that he had a valid caregiver license on the date that his home was searched because Horner's November 1, 2013, felony drug convictions left him ineligible to maintain such a license.
Tackman and Horner both also moved to suppress the evidence recovered in the searches of their respective homes. 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 allowed him to legally possess marijuana. 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 concluded that Horner had MMMA "immunity" because "at all times during these proceedings ... [Horner] was vested with a caregiver card under the" MMMA, that the MMMA is not "self-effectuating," but rather "the statute" "call[s] for the Secretary of State to issue cards to various people ... upon satisfaction of certain conditions" and that "[i]t is incumbent on the Secretary of State ... to have procedures in place that adequately comply with" the MMMA. And the trial court concluded 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 Count I, and then dismissed all charges against him.
Although the trial court stated that the Secretary of State is responsible for issuing registry identification cards under the MMMA, it is the Department of Licensing and Regulatory Affairs that has the authority and responsibility to do so. See MCL 333.26423(c) and MCL 333.26426(a).
The trial court similarly concluded that Tackman was immune from prosecution under the MMMA. The trial court "believe[d] it[ was] incumbent upon the Secretary of State ... to revoke [Tackman's] card in the event a felony has been entered" and found that "the Secretary of State did not revoke [Tackman's] caregiver card." Accordingly, it granted Tackman's motion to dismiss Count I, and then dismissed all charges against him. These appeals followed.
On appeal, the prosecution argues that the trial court reversibly erred by dismissing the MMMA charges against Tackman and Horner. We agree.
A trial court's factual findings relating to § 4 immunity under the MMMA are reviewed for clear error, but the attendant legal determinations are reviewed de novo. People v. Hartwick , 498 Mich. 192, 201, 870 N.W.2d 37 (2015). A trial court's decision on a motion to dismiss criminal charges is reviewed for an abuse of discretion, which occurs when the "decision falls outside the range of principled outcomes." People v. Nicholson , 297 Mich.App. 191, 196, 822 N.W.2d 284 (2012). Also, "[a] trial court necessarily abuses its discretion when it makes an error of law." People v. Waterstone , 296 Mich.App. 121, 132, 818 N.W.2d 432 (2012).
MCL 333.26427(a) of the MMMA 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 th[e] act." In addition, § 4 of the MMMA provides that qualifying patients and caregivers are allowed to possess marijuana, in relevant part, as follows:
(a) A qualifying patient who has been issued and possesses a registry identification card is not subject to arrest, prosecution, or penalty in any manner ... provided that the qualifying patient possesses an amount of marihuana that does not exceed a combined total of 2.5 ounces of usable marihuana and usable marihuana equivalents .... The privilege from arrest under this subsection applies only if the qualifying patient presents both his or her registry identification card and a valid driver license or government-issued identification card that bears a photographic image of the qualifying patient.
(b) A primary caregiver who has been issued and possesses a registry identification card is not subject to arrest, prosecution, or penalty in any manner ... for assisting a qualifying patient to whom he or she is connected through the department's registration process with the medical use of marihuana in accordance with this act. ... This subsection applies only if the primary caregiver possesses marihuana in forms and amounts that do not exceed any of the following:
(1) For each qualifying patient to whom he or she is connected through the department's registration process, a combined total of 2.5 ounces of usable marihuana and usable marihuana equivalents.
(2) For each registered qualifying patient who has specified that the primary caregiver will be allowed under
state law to cultivate marihuana for the qualifying patient, 12 marihuana plants kept in an enclosed, locked facility.
The MMMA defines the terms "primary caregiver" or "caregiver" as follows:
[A] a person who is at least 21 years old and who has agreed to assist with a patient's medical use of marihuana and who has not been convicted of any felony within the past 10 years and has never been convicted of a felony involving illegal drugs or a felony that is an assaultive crime as defined in section 9a of chapter X of the code of criminal procedure, 1927 PA 175, MCL 770.9a. [ MCL 333.26423(k).]
The MMMA defines the terms "qualifying patient" or "patient" as "a person who has been diagnosed by a physician as having a debilitating medical condition." MCL 333.26423(l).
It is undisputed that both Tackman and Horner had been convicted of a felony before the September 2014 searches of their homes. For that reason, neither was eligible for § 4(b) caregiver immunity. That is necessarily so because MCL 333.26423(k) of the MMMA in part defines a "primary caregiver" or "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.
Moreover, neither Tackman nor Horner was eligible for § 4(a) patient immunity because each exceeded the "volume limitations" for a qualifying patient. See Hartwick , 498 Mich. at 201, 870 N.W.2d 37. Again, § 4(a) specifies that patients may possess amounts that do not exceed up to only "2.5 ounces of usable marijuana" and, if lacking a primary caregiver, up to "12 marihuana plants." But officers found 81.1 grams of marijuana and 21 marijuana plants at Tackman's residence, and they found 21 marijuana plants at Horner's residence. The MMMA provides no basis for the trial court's conclusion that Tackman and Horner retained immunity from prosecution because their registration cards had not been officially revoked, and the court cited no MMMA provision or caselaw supporting this conclusion. Further, neither party on appeal puts forward any caselaw or statutory provision supporting that aspect of the decision below.
The MMMA states that the Department of Licensing and Regulatory Affairs must issue a registry identification card to a caregiver if a qualifying patient names the person as his or her primary caregiver and the caregiver has no more than five qualifying patients. MCL 333.26423(c) ; MCL 333.26426(a) and (d). "The department may deny an application or renewal ... if [it] determines that the information provided was falsified." MCL 333.26426(c). Registry identification cards "expire 2 years after the date of issuance." MCL 333.26426(e). And a caregiver's card must be revoked if the caregiver "sells marihuana to someone who is not allowed the medical use of marihuana under" the MMMA. MCL 333.26424(l). We are aware of no other revocation provisions within the MMMA. The definition of "caregiver" specifically restricts that status to persons who have "not been convicted of any felony within the past 10 years," or who have not been convicted "of a felony involving illegal drugs or ... a felony that is an assaultive crime," regardless of whether that person happened to possess a caregiver card at the time of the conviction. MCL 333.26423(k). For that reason, whether the caregiver card was revoked or not is irrelevant. Accordingly, Tackman's May 2014 conviction deprived him of caregiver status in connection with the September 2014 search of his home and the criminal proceedings that followed. Similarly, Horner's November 2013 conviction deprived him of caregiver status when the September 2014 search of his home took place.
If the Department of Licensing and Regulatory Affairs issued Horner another caregiver card on August 12, 2015, as he claims, it would have done so in error because, as explained, he did not meet the definition of "caregiver."
Instead of relying on the MMMA itself, the trial court looked beyond it and analogized the department's failure to revoke a caregiver card to the failure of the Secretary of State to revoke a driver's license following a driving offense that requires such revocation. In fact, the record contains no evidence of such a Secretary of State procedure. The Michigan Vehicle Code, MCL 257.1 et seq ., does require that when a person has a certain number of operating-while-intoxicated convictions within a certain period, "the secretary of state shall revoke [the offender's] operator's ... license...." MCL 257.303(2)(c). And, of course, a person is subject to criminal prosecution for driving with a revoked license. MCL 257.904(1) and (3). But there is no similar scheme within the MMMA that criminalizes a person acting as a caregiver after a felony conviction. Rather, manufacture and delivery of marijuana remains a crime in this state, Hartwick , 498 Mich. at 209, 870 N.W.2d 37 ; MCL 333.7401(2)(d), but a person may be immune from prosecution by complying with § 4 of the MMA. Accordingly, the revocation of an MMMA caregiver card has no bearing on the criminality of delivery and manufacture of marijuana. Therefore, the trial court's likening of the revocation of a caregiver card to the revocation of a driver's license was a poor analogy. Because neither defendant qualified for the MMMA's § 4, the trial court abused its discretion by dismissing the charges against Tackman and Horner on this basis. See Waterstone , 296 Mich. App. 121, 132, 818 N.W.2d 432.
II.DOCKET NO. 331874
As already stated, when May executed the search warrant at Horner's home on September 18, 2014, he found Vantol inside Horner's garage. Vantol, Horner's neighbor, admitted to watering the marijuana plants at Horner's home on several occasions when Horner was gone. Vantol was thereafter charged with one felony count of manufacturing less than 5 kilograms or fewer than 20 plants of marijuana, contrary to MCL 333.7401(2)(d)(iii), second offense. There is no evidence that Vantol was ever a qualifying patient or caregiver under the MMMA.
Vantol moved to suppress the evidence recovered in the search of Horner's home, asserting his own standing to challenge the warrant for lack of 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 had manufactured marijuana. The trial court granted Vantol's motion to dismiss pursuant to the MMMA. The trial court explained that because Horner possessed a valid caregiver card that had not been officially revoked, Horner was legitimately in business for purposes of the MMMA, and thus that Vantol came under the protections of the MMMA. The prosecution agreed with the trial court's position that if its ruling on Horner's case was upheld, it would leave no basis for proceeding against Vantol.
On appeal, the prosecution asserts that the trial court reversibly erred by granting Vantol's motion to dismiss, because Vantol was neither a qualifying patient nor a caregiver under the MMMA and was therefore not entitled to any protections or immunities available under it. We agree.
Patients and caregivers who comply with the MMMA may be immune from prosecution under § 4 of the MMMA. Hartwick , 498 Mich. at 209, 870 N.W.2d 37. The MMMA defines the terms "qualifying patient" or "patient" as "a person who has been diagnosed by a physician as having a debilitating medical condition." MCL 333.26423(l ). The MMMA defines the terms "primary caregiver" or "caregiver" as "a person ... at least 21 years old ... who has agreed to assist with a patient's medical use of marihuana and who has not been convicted of any felony within the past 10 years and has never been convicted of a felony involving illegal drugs or a felony that is an assaultive crime ...." MCL 333.26423(k).
Section 4(a) of the MMMA governs patient immunity. Section 4(b) of the MMMA governs caregiver immunity. To claim immunity under these provisions, a putative patient or caregiver must show "by a preponderance of the evidence that, at the time of the charged offense," he or she "possessed a valid registry identification card," complied with the § 4 "volume limitations," "stored any marijuana plants in an enclosed, locked facility," and "was engaged in the medical use of marijuana." Hartwick , 498 Mich. at 201, 870 N.W.2d 37. Section 4(a) specifies that a patient may possess amounts that do not exceed "2.5 ounces of usable marijuana" and, if lacking a caregiver, up to "12 marihuana plants." Section 4(b) specifies that a caregiver may possess amounts that do not exceed "2.5 ounces of usable marihuana" and "12 marihuana plants" per "qualifying patient."
In this case, Vantol moved to dismiss the charge brought against him under § 4 because he was acting as Horner's agent at the time of the instant offenses, thus hoping that Horner's compliance with the MMMA would extend immunity to him. The trial court agreed and granted his motion. But, as explained earlier in this opinion, Horner did not in fact qualify for MMMA immunity because he possessed more marijuana than allowed a single patient, and Horner did not meet the definition of a "caregiver." Because Horner did not qualify for immunity, no agent of his may claim immunity derivatively from Horner.
The trial court did not expressly state that it found that Vantol had in fact acted as Horner's "agent," but because Vantol's motion was premised on an agency argument, the matter seems little in doubt.
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Tackman, Horner, and Vantol raise additional arguments that were never addressed by the trial court. Because appellate review is limited to issues actually decided by the trial court, we need not address those issues on appeal. Heydon v. MediaOne of Southeast Mich., Inc. , 275 Mich.App. 267, 278, 739 N.W.2d 373 (2007).
Reversed and remanded for proceedings not inconsistent with this opinion. We do not retain jurisdiction.
Cavanagh, P.J., and Sawyer and Servitto, JJ., concurred.