Growing Outside And Busted

Jakk · March 27, 2011

August 21th, 2010

My husband, age 58, with rheumatoid arthritis and I am age 59, with a second diagnosis (10 years apart) of stage 3 terminal breast cancer. Both of us have been approved and have a medical marijuana card for health reasons. We reside in Brighton, MI 48116.

Around 11a on Tuesday, August 10th, while we were both home, were raided by the police. This is my account from the time I was awoken by my husband with an officer standing at my bedroom door.

I was sleeping after working all night. We both work from home, 24 hours a day and 7 days a week taking calls from people calling from an internet site for opiate addiction drug detoxification treatment and also taking calls from past patients that we cover after they have been detoxed.

My husband came to my room and said “Jeanne, get up, the police are here” and as I was trying to wake up and I said, feeling very confused, “what do you mean?” and he said “the police are here for the marijuana in the yard.” I said “what are you saying?” I was dazed, got up walked out of my room and right there was a large muscular young man dressed in jeans and T-shirt. I got on my robe, walked to the kitchen, felt dizzy like I might faint so I got some coffee. Then I went to the bathroom where I was followed everywhere, I saw 2 other young men dressed in regular clothes; blue jeans, etc. I asked them if they were from LAWNET (Livingston and Washtenaw County Narcotics Enforcement Team). They said yes. I was shocked, scared and shaken. They asked me if anyone else was in the house so I went upstairs to get my mother from her room, they followed, but she was not there, I immediately knew she must have went out with my aunt and I told them that. They said “we need to secure the premises, anyone else here?” I said ”no”.

I then went back down to the basement where I was followed by two officers and one officer said to me “I’m sorry about your cancer, your husband told me about it” and I said nothing. They proceeded to keep a watch on me positioning a person to watch and stay with me as I was in the basement of the home where we have to live ( we have been renting our own home out for 12 years) so I can take care of my 87 year old mother who is blind. Another officer came downstairs and stood against my refrigerator while I sat at the kitchen table and the other one was across the room by the television and another one was upstairs, I assume with my husband.

At this point I didn’t know how many were in the house, they all looked alike to me with shaven heads and huge muscles. I didn’t really look at them or make much eye contact. I asked one if he was on steroids as I know anyone that pumped up is usually on steroids. He said no. After about 15 minutes I asked them what was going to happen and they said we are waiting for a search warrant. I thought to myself, how did they get into the house without a search warrant? Believe me, we know better than that.

One made a comment, “does the marijuana help your pain” and I said “yes”. He said, there are many pharmaceuticals to help people with pain, why would anyone need to use marijuana for pain. I explained to him that I help people get off of opiates drugs and briefly told him how damaging they were and that that is what they should be looking into. I told him I hate prescription drugs of any kind and would rather smoke marijuana for pain. I mentioned we have no place to grow marijuana in the house and they certainly could see there was not even a 3x3 foot space for anything. They said I should have a caregiver and I said I can grow my own, I don’t know any caregivers and thought a secured yard with a 6 foot fence locked up would be considered an enclosed and locked facility. I said Jackson Prison’s yard is fenced and the prisoners go outside and that the outside yard is considered a part of the secured locked and enclosed facility.

Finally, after an hour or so, maybe two others came and they must have presented the search warrant upstairs, I guess to my husband who was still upstairs sitting at the kitchen table. Then they all started searching my basement home. They looked in drawers, closets, kitchen cupboards, everywhere. There were other officers upstairs where my husband was, searching my mother’s room, spare bedrooms, kitchen etc. From our area of the home, which is the basement, they took all and any marijuana they found, doubtful it was over the 5 ounce limit, including a few “roaches” in ashtrays and they took pictures of it all. They collected things and put in baggies and wrote on them with magic marker. They took a scale, seeds, all the marijuana and any “roaches” left in ashtrays, and whatever else they took; I‘m not sure.

They said they had a tip about the marijuana growing outside and that it was illegal to grow outside without a top. He said “someone could reach over the fence and get it”. I showed him our receipt for a $250 motion detector with 2 alarms which I said would have been placed as soon as it started to flower. I told them I work from my home so there is never a time when someone is not home. He was surprised and commented that I have cancer and still work?

After they completed their search of the house, gathered and bagged their evidence, which they also took some old medication bottles (one was Phenobarbital prescribed for my dog, Hannah), then they went out to the yard and pulled all 24 plants up by the roots and took them to some vehicle that was in the driveway.

Once they left, I was near hysterical, extremely upset. I am a nurse and do not want to lose my license. I asked my husband angrily how they got into the home and why he let them in without a search warrant? I knew that was not something he would ever allow. We are not stupid, we would never trust any of them and we would never talk with them nor allow them to come in without a search warrant. My husband is very opposed to that and knows better and would never be intimidated to allow that.

His story to me follows: they knocked on the door and through the glass, they saw him heading downstairs, so he had a feeling it was the police so he went to the door and he talked to them through the closed door, which is a full glass door with a mini blind. They said “Police” and he was up to the glass front door and 3 of them were outside on the front porch. Through the window of the closed door, they held up a badge. He said, with the door still closed and locked, that they told him they were here about the marijuana in the back yard.

He told them that the planter (a white duck planter) was just behind them, where they could find our certificates and paperwork to prove we were medical marijuana patients, all conversations were through the front door still shut and locked. The officers went over to look for the paperwork in the planter and couldn’t find it so they asked my husband to come out and find it for them. So he went outside, shutting the door behind him and got it out of the planter. One of the officers said “why do you have this wrapped in plastic and placed in a planter, I have never seen that before?” My husband stood out on the front cement porch with the door closed telling them “just in case we needed to show that to a law enforcement person”. We did that so we would not have to open a door to a policeman to hand them anything. I had done this for 2 years when I first got my card. We were prepared and not trying to hide anything. They were all trying to rip open the plastic that was wrapped in a plastic bag and heavily taped around the folded paperwork and they looked at the paperwork and said “all this doesn’t matter because you are growing marijuana outside without a top”.

My husband said “what kind of top are you talking about, do you have a picture of a top or an explanation of a top and how it should be constructed?” and an officer said “I don’t know, but because you don’t have a top on it, this is considered a felony.” My husband said, “so let me get this straight, you give me a license to grow marijuana and then you come and arrest me because I don’t have a top on it, that I didn’t even know I needed and it isn’t written in the law?” The officer said “this is not my idea, I’m just following what the prosecutor said to do and I would like to search your home with permission from you.” My husband said “NO, you have to have a search warrant” and he said “well, we’ll get a search warrant then.”

Then he said “will you show me the plants, I need to see if you have the correct amount?” My husband said “go around to the back yard and I’ll unlock the gate so you can count the plants”. So my husband opened the front door, came back in, shut and locked the door and went out the door to the screen porch connected to the house and through another door leading out to the backyard. He unlocked the gate and 3 of them walked into the back yard. They said they had seen the plants from a neighbor’s yard already. They counted the plants, there were the allowed amount of 24 and then they said again, “this is now considered a felony because you do not have a top on them and now we are going to call the prosecutor to get a search warrant for the house.” My husband said “go ahead and get your search warrant.” The officer said “can I enter the house with your permission?” and my husband said “NO, not without a search warrant”. Then the officer called on his cell and ordered the search warrant.

Then my husband said “okay, can I go now” and the officer said “no we have to watch you and secure the house so nobody destroys evidence, so go sit on the screened porch”. So he went to the screened porch and to sit down and they followed him through the door, uninvited and onto the screened porch and told my husband to sit down while they were going to secure the people in the house so they didn’t destroy evidence. They were all on the screen porch with the house door shut and the officer asked “how many people are in the house?” and he said “two”. They asked where they were and my husband told them I was downstairs sleeping and his mother in-law was in her bedroom just off the living room. Two of them opened the door to the house while my husband sat on the screen porch being detained. Without permission they started to walk in the house and my husband said, “you cannot enter the house without a search warrant”. That is when they said “we are allowed to, to secure the people from destroying evidence in this house.” He said “I never heard of that before”. The officer said “we have a right to secure the premises”. Then two of the officers just continued to walk into the house, through the door which enters from the screened porch, without my husband’s permission. They asked him, while they were already standing in the house, with my husband on the back porch with an officer guarding him, what my mother’s name was, so they could shout her name out before they entered her bedroom. He told them “Betty”.

My husband remained on the porch with one of the officers, all the time being told that he had to stay there while they secured the other two people in the house. Two of them headed towards my mother’s room, calling her name. When they saw no one was in that bedroom the officers came back out to the porch and asked my husband where the other person was and he said “in the basement, to the left is a bedroom and my wife is sleeping there.” So they said what is her name? My husband said Jeanne. So the two started heading down to the basement stairs and they told the officer that was with my husband, to have my husband come in the house and go downstairs with them. My husband came down to the basement with them and they told him to wake me up and that’s where this story began.

Jakk · March 27, 2011

To Whom It May Concern,

I have been a Michigan Medical Marijuana patient since May of 2009 due to the pain I have after diagnosis and treatment of stage 3 breast cancer which required total mastectomy with complete lymph node removal, radiation and chemotherapy. This is my second bout with breast cancer also requiring partial mastectomy, radiation and chemotherapy.

My husband has been dealing with painful joints for years and sought medical care which resulted in testing positive for rheumatoid arthritis. He received his medical marijuana patient approval in May of 2010.

We work in the field of opiate addiction and provide opiate detoxification treatment which over the years in this business has proven to us the horrors of addiction to pain medication. We have treated thousands of patients from all over the United States, from all walks of life. Use of these dangerous addicting drugs is at an epidemic proportion right now. We would never consider at this point using opiate based drugs knowing how destructive they are on the body; mentally and physically. We choose instead to go a more natural and non addicting route for pain control; Marijuana.

Because of our living situation we had not even a 3 foot by 3 foot space in our area where we lived with my blind and elderly 87 year old mother. Our living space was in her finished basement where we have lived for the past 12 years so we could take care of her.

After thoroughly reviewing the Michigan Medical Marijuana Act we determined that our totally enclosed back yard with a 6 foot high locked privacy fenced area would be the only place where we could grow the marijuana. This we thought fell under the MMMA wording as “an enclosed locked facility such as a room or a closet or other enclosed area”. We looked up the legal definition of a facility, enclosed, etc. and felt we were within the law. Beforehand, we called Genoa Township and talked with the supervisor who could not answer our questions about if this would be acceptable. We called the Michigan Medical Marijuana Office to inquire if this was acceptable. We only were able to leave a message on a recorder, which a call was never returned. So I suppose, foolishly and never thinking we were breaking any laws, we went forward and planted our marijuana plants sometime in June of 2010. We are NEVER “not home”. We work from our home 24/7. We purchased an expensive $250 motion detector that we were going to place in the yard once the plants started to flower. This we thought fell under the MMMA wording as “or other security devices”.

On August 10, 2010 we were visited by 4 police officers from LAWNET that came into our home as if we were criminals, searched our entire home after obtaining a search warrant, cut down our plants and proceeded to charge my husband with a Felony Offense: CONTROLLED SUBSTANCE-DELIVERY/MANUFACTURE (MARIJUANA) Statute/citation: 333.74012D3.

Since the voters approved medical marijuana it has come to my attention that other approved medical marijuana patients have been tied up with charges that do not seem to fit the crime as the court charges. The MMMA is vague and poorly written with nowhere for the patient to find out what exactly is appropriate and acceptable according to the new law. We were told by the LAWNET officers that my husband was being charged as a felon because our growing area “did not have a top on it”. Nowhere in the wording of the MMMA does the word “top” even exist.

I would like to request that since Michigan has a new medical marijuana law/act approved overwhelmingly by the Michigan voters, wouldn’t it make sense to create new terms and new wording that applies to charges that fit the new crime. My husband should only be charged with a new crime such as “VIOLATING THE TERMS OF THE MMMA” because it is a new crime that comes about from violation of a new act, not charged with a felony for delivery and manufacture of a controlled substance. We were not delivering, selling or illegally manufacturing a controlled substance. This charge was not meant for an approved medical marijuana patient. We were approved and had received our card and were legally allowed to grow 12 plants each for our personal use for pain control. If we were guilty of anything, it would be the way we interpreted the law as written. So, the law as written needs charges that applies to the violation of that law. The charges being applied were never intended to cover this very different situation.

I plead with someone to take the initiative to immediately bring this to the attention of our lawmakers as to the harshness and mis-directed charges that should not apply in these cases. The charge of a “felony for delivery and manufacture of a controlled substance” applies to certain drug charges, but this is a new Michigan act and requires new wording for new charges to fit the new crime and the “felony charge for manufacture and distribution of a controlled substance” should not apply to a marijuana patient simply found in violation of the terms of a vague new MMM Act and the courts erroneous interpretation.

The charges against my husband were not meant for a person that the court determines is in violation of the MMMA concerning the court’s interpretation of the marijuana growing conditions. How can a charge apply to a law that didn’t exist when this felony charge was created and was not meant to include violation of MMMA? It is simply wrong to use this charge that was never intended for a patient found guilty of violating the terms of the new MMMA. How can this misunderstanding of a MMMP’s wrong interpretation of a poorly written act justify bringing felony drug charges that include the wording “distribute and manufacture of a controlled substance” when a MMMP has the right to grow marijuana legally?

Even more outrageous is now the inability of my husband to even be allowed to defend himself as an MMMP in a trial. This is due to the recent ruling from The Michigan Court of Appeals decision on a case they heard which they determined being a MMMP was not a defense when growing marijuana outside without a “top”. Again, no wording in the MMMA even has the word “top” in the entire act. We now have been told by our attorney that while in trial our status as an approved patient with a card cannot be a defense. If during the trial, we were even to mention the fact that we were licensed medical marijuana patients, that we will be held in contempt of court. How can we fairly defend ourselves when this can’t even be brought up at trial?

Any reasonable person would certainly find this situation unconstitutional, a violation of the rights of Michigan citizens approved for the medical use of marijuana and as public servants you have a duty to help the citizens caught up in this law that was poorly written, as many judicial representatives have stated. I urge you to enact new wording for charges that would apply to the MMMP that you consider in violation of the act.

Kingdiamond · March 27, 2011

Sickening how petty law enforcement can be about simple rule violations unless you were actively selling drugs there is no reason you should have been treated like criminals at worse in cases like this officers should allow any "unsecured" area brought up to what the law says is secure not punish sick people with life destroying felony charges. :notfair:

trix · March 27, 2011

This just happened? call a lawyer, they still work when the sun goes down if the case is right and this is one of them cases.. The user name 'Kingpin' is going through this same case, in the Supreme court right now.... what county is this in?

Michael A. Komorn

Attorney and Counselor

Law Office of Michael A. Komorn

800-656-3557 (Toll Free)

248-351-2200 (Office)

248-357-2550 (Phone)

248-351-2211 (Fax)

Email: michael@komornlaw.com

I'm so sorry this has happened to you and your family, as I'm going through the same crap right now to with court and the cops, in Macomb

Trix :bong2:

Edit: Sorry I just re-read it again,

Around 11a on Tuesday, August 10th, while we were both home, were raided by the police.<----- Why just now seeking help?

Edited March 27, 2011 by trix

Jakk · March 27, 2011

This just happened? call a lawyer, they still work when the sun goes down if the case is right and this is one of them cases.. The user name 'Kingpin' is going through this same case, in the Supreme court right now.... what county is this in?

Michael A. Komorn

Attorney and Counselor

Law Office of Michael A. Komorn

800-656-3557 (Toll Free)

248-351-2200 (Office)

248-357-2550 (Phone)

248-351-2211 (Fax)

Email: michael@komornlaw.com

I'm so sorry this has happened to you and your family, as I'm going through the same crap right now to with court and the cops, in Macomb

Trix

Edit: Sorry I just re-read it again,

Around 11a on Tuesday, August 10th, while we were both home, were raided by the police.<----- Why just now seeking help?

trix · March 27, 2011

here is a summary of that case;

People v Larry King

On February 3, 2011, the Michigan Court of Appeals published a decision clarifying the definition of an "enclosed, locked facility" pursuant to the Michigan Medical Marihuana Act (MMMA).

In May 2009, and acting on an anonymous tip, local police observed marihuana plants growing in a dog kennel in defendant's backyard. The 6 foot tall dog kennel was made of chain link fence, had an open top which was covered with black shrink wrap, and was not anchored to the ground. Defendant also had multiple plants growing inside an unlocked closet in his home.

Defendant, a qualifying patient pursuant to the MMMA, was charged with two counts of manufacturing marihuana. The trial court determined that defendant's dog kennel and house constituted enclosed, locked facilities and dismissed the charges pursuant to the affirmative defense available under Section 8 of the MMMA.

The MMMA defines "enclosed, locked facility" as a closet, room, or other enclosed area equipped with locks or other security devices that permits access only by a registered primary caregiver or registered qualifying patient.

The Court of Appeals reversed the lower court ruling, finding that defendant's dog kennel did not satisfy the statutory definition of an enclosed, locked facility. The court limited the definition to those "things of the same kind, class, character, or nature" as the specifically enumerated items, being a "closet" or "room." In coming to its decision, the court found the dog kennel lacked the characteristics of a closet or room.

The court further held that the marihuana plants cultivated within a closet did not meet the statutory requirements because the closet, and the house as a whole, was not secured by locks.

In a dissenting opinion, Judge Fitzgerald opined that the dog kennel did fit the definition of an "enclosed, locked facility" because the fence was six feet high and by definition, a top is not required to enclose something. Further, the kennel was locked, the plants were obscured from view, and the police officers were only able to gain access to the plants after the defendant retrieved a key from inside his home. Additionally, Judge Fitzgerald noted that defendant's home was not required to have a lock because the MMMA contemplates the use of "other security devices" to secure marihuana plants.

Sounds just like your story, :notfair: I'd be watching this case very closely.. Good Luck.... and Welcome to the site !!

Trix :bong2:

Edited March 27, 2011 by trix

Jakk · March 27, 2011

We are in the circuit court system right now.

Here is a letter I sent to the Governor:

To Whom It May Concern,

I have been a Michigan Medical Marijuana patient since May of 2009 due to the pain I have after diagnosis and treatment of stage 3 breast cancer which required total mastectomy with complete lymph node removal, radiation and chemotherapy. This is my second bout with breast cancer also requiring partial mastectomy, radiation and chemotherapy.My husband has been dealing with painful joints for years and sought medical care which resulted in testing positive for rheumatoid arthritis. He received his medical marijuana patient approval in May of 2010.