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Victory over 3 cases in two cities.

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Michael Komorn

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Our clients in Wayne and Garden City were charged with four counts of controlled substance felonies, as well as the police seizing retirement bank accounts, vehicles and other unrelated property.

Count 1: Controlled Substances – Delivery / Manufacture of marijuana 5-45 kilograms

Count 2: Controlled Substances – Delivery / Manufacture of marijuana 5-45 kilograms

At the time of the charged offense, the clients were valid registered patients and caregivers with the Michigan Medical Marihuana Program, and were in possession of their cards, and identification at all times during the incident. At the time of the execution of the search warrant, officers were aware the accused were medical marihuana patients and caregivers.

 

In the criminal case in Garden City we had to file many motions to maintain and preserve our client’s rights.

·        Motion for immunity from prosecution, Section 4 MMMA defense.

·        Motion for immunity from arrest, Section 4 MMMA Defense.

·        Motion in Limine to preclude the Search Warrant as defective.

·        Motion to dismiss charges, Section 4 paraphernalia MMMA defense.

·        Motion in Limine to preclude evidence from an unconstitutional warrantless cell phone search.

·        Motion to return untainted property based on lack of a probable cause.

 

Simultaneously, the county seizes assets via civil asset forfeiture laws at the same time as the criminal charges. If you do not challenge the civil asset forfeiture, the county or state will just take the property. Police and prosecutors are only required to give you a piece of paper when the police take the property, called a "Notice of intent to forfeit". For our clients to get their bank accounts back and other property, we had to file motions to compel the court to uphold our client’s constitutional rights to their property.

After putting in an appearance on the forfeiture case, the prosecutor failed to notice us of any actions. When we showed up to court, the forfeiture case was dismissed due to “Failure to Serve” in 2015. Wayne County Prosecutors then refiled the forfeiture case TWO years later. We fought again with a series of motions.

·        Motion to dismiss due to statute of limitations, failure to refile case “promptly”.

·        Motion to quash discovery.

·        Motion to dismiss, Section 4 MMMA defense to any penalty (forfeiture).

·        Motion / Memo to demand a show cause hearing for reason why property was not returned.

 

The clients were charged by the police who thought they were committing serious crimes. The police officers thought, based on their training and experience, our clients were manufacturing marijuana. In cross-examinations of the police officers involved in the raids, we asked a few standard questions.

 

Mr. Komorn : Have you read the Michigan Medical Marihuana Act?

Sgt. Police officer: The whole thing?

 

How are the enforcers of the law supposed to carry out the law, if they don’t know the law? How are the police officers supposed to decide who is in compliance with the law and who is not in compliance with the law? There are also 2,000 pages of case law on the Michigan Medical Marihuana Act, detailing out various immunities and procedures that are not being followed by the police.

The police were overzealous and caused ridiculous violations of our client’s constitutional rights. Our clients were charged with the following crimes in Garden City, due to the police using false and incompetent search warrants.

Controlled substance--- Manufacture of Marijuana, contrary to MCL; 333.7401(2)(d)(ii), a 7 year felony

Controlled substance--- Possession with Intent to Deliver Marijuana, contrary to MCL; 333.7401(2)(d)(ii), a 7 year felony

The criminal case against our client was dismissed in Garden City after filing two motions.

·        Motion to suppress evidence due to lack of probable cause.

·        Motion to return untainted property.

 The judge in the case read the original search warrants and said it was ridiculously deficient!

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Quote

LANSING, Mich. (WXYZ) - You have seen the movies.  Police seize the stuff of crime bosses to stop a network of criminals, but could it happen to the average person? Could your stuff be seized even if you aren’t charged with a crime?  Defense attorneys say it is happening all the time here in Michigan, especially to medical marijuana users. 

When police seize stuff they believe was bought or is money made from a crime, they start what is called a civil asset forfeiture process.  

“It allows law enforcement and benefits everybody, to remove the profit motive from drug dealing,” said Robert Stevenson, the Executive Director of the Michigan Association of Chiefs of Police. 

Police say they only seize stuff they truly believe is connected to crimes. Often people are never charged with a crime or their belongings are kept after charges are dropped.  

“I did not get bound over by the judge but they still have my stuff,” said Ginnifer Hency  as she testified before state lawmakers in 2015. 

She said she has multiple sclerosis and is a medical marijuana patient.  She said even after a judge cleared her of any crime, the prosecutor fought to  keep her valuables.

Lawmakers changed the law to raise the burden of proof, but people are still voicing complaints. 

“I felt robbed, like a highway robbery,” said John Hamann of what happened to him and his dad Ron Hamann. 

The Hamanns say they believe it is about making money for law enforcement.  When medical marijuana became legal, they applied for cards to be caregivers and patients.  

“I thought everything was legal,” said Ron. 

“Everything you are supposed to do. I followed all the weights, all the counts and everything like that, but it doesn’t matter. They take everything and say gotcha,” said John. 

They say almost three years ago police seized all their valuables.  They say about two years later, only when they came close to winning their belongings back, were they charged with manufacturing marijuana. To them, it felt like a shakedown. 

“WCPO’s longstanding office protocol is that any civil forfeiture case and the associated criminal cases are kept separate. In other words WCPO has a  fire wall in place..The civil and criminal cases are completely independent from one another,” said Maria Miller of the Wayne County Prosecutor’s Office in a statement. 

The prosecutor’s office says the Hamann's face the charges because it is alleged  that they had over 20 pounds of marijuana and 69 marijuana plants.

Komorn, their attorney says that doesn’t make sense as a legal allegation.  Ron had a patient card and proof he was a caregiver for two patients.  He was allowed to possess 36 plants.  John had a patient card and was a caregiver for 4 patients.  He was allowed to possess 60 plants.  As for the weight, Komorn says pictures submitted as evidence show the marijuana weighed was unusable in that it was wet and included stalks thrown in the garbage.  Komorn says only usable marijuana is supposed to count in weight limitations. 

The Hamanns say what was seized has nothing to do with marijuana.  They say police seized their 401Ks, which they contributed to through their jobs at a home remodeling company. Police told them they could because the money was from drugs. 

“I don’t understand it at all. It is on my paystub. It shows where my money comes from.  It is all legal,” said John Hamann. 

“All the money is traceable from his job into his 401k,” said Rep. Peter Lucido (R-36th District).  “There is no logic or reason for the police to do what they are doing. But they have the right to do it under state law.”

Representative Peter Lucido has introduced House Bill 4158. He says police all too often seize property from the innocent.Taking a look at the numbers.  The state’s asset forfeiture report says in 2016 police seized more than 15 million dollars in property.  In about ten percent of those cases no one was charged.  He wants the law changed, so that police would only be able to keep your stuff if there is a conviction, forcing police to at least charge people in order to keep their belongings.

“They have a right to seize it and put it into an evidence locker, but if they don’t charge the person, what did the person do wrong under the law?” asks Lucido. 

“It does put people in a tough spot.  It puts a person in a tough spot if those proceeds are from illegal activity,” said Stevenson. 

Law enforcement leaders, like Stevenson, say If someone wants to get their stuff back, all they have to do is answer the questions investigators have.  It has the potential to be a powerful tool in the fight against crime.

“One of the things you have to do in a civil case, which you do not have to do in a criminal case, is you have to answer questions,” said Stevenson.

Michael Komorn argues that it hurts justice.  He says he takes on clients who can’t afford his services,  because their assets are seized. 

“The idea that the government just takes it, and the idea that by possessing it it becomes theirs, and the burden shifts to the owner of it to prove that the property is not guilty or that they got it legally, goes against the grain of what people expect from our legal system,” said Komorn.

John and Ron Hamman says they believe they will be found not guilty - but in the meantime are being punished. 

Rep. Lucido will have the chance to make his case that this law needs to be changed during a hearing in Lansing on February 6. 

https://www.wxyz.com/news/rep-lucido-says-bill-would-prevent-police-from-seizing-innocent-peoples-stuff

 

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