Legal Pot Grower Sues Over Plants' Confiscation In Kalamazoo Township

[+Scottybud]

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KALAMAZOO TOWNSHIP — Last August, Salman Ali was away on a work trip. But when he returned to his rented Kalamazoo Township home, he was greeted by an unpleasant surprise.

 

Township police and members of the Southwest Michigan Enforcement Team, a multi-jurisdictional drug enforcement unit, had raided his home on East Main Street.

 

Ali, a registered medical marijuana patient and caregiver for one patient at the time, had 12 of his marijuana plants — all enclosed in a locked facility, as required by law — confiscated by authorities.

 

But now nearly a year later, he has never been charged with a crime and his plants — if anything remains of them — are still in police custody.

 

Under the state’s medical marijuana law, Ali, 28, was permitted to possess up to 24 plants, 12 each for being a patient and a caregiver. And even though he said he had posted in plain view in the room where the plants were growing a doctor’s recommendation that he was a registered patient — a step not required under the law — the law enforcement agents took the plants anyway, even confiscating the recommendation itself.

 

Copies of his state-issued identification cards indicating he was a registered patient and caregiver were not posted, but that’s not required either.

 

Now Ali has filed a lawsuit against Kalamazoo Township for the return of his property, in this case, being compensated between $1,000 to $3,000 for the value of each of the plants he was growing. The three-count complaint was filed July 7 in Kalamazoo County Circuit Court. The township has until Aug. 9 to respond to the complaint.

 

“They shouldn’t take the medicine first and ask questions later,” Ali said. “I think they should be held accountable.”

 

But even though qualifying individuals may possess marijuana in Michigan — as well as 13 other states that have a medical marijuana law — the drug is still illegal in the eyes of the federal government in all cases.

 

Ali’s case illustrates gray areas in the year-and-a-half old law: Should law enforcement seize a registered patient or caregiver’s medical marijuana? And can the plants be returned if the patient or caregiver is found to be operating within the state’s law?

Calls to SWET seeking comment for this story were not returned.

 

The Kalamazoo Township Police Department and Kalamazoo County Prosecutor’s Office declined to comment on the specifics of the case, citing the fact that it is being litigated, but Timothy Bourgeois, the township’s chief of police, provided a general statement on the matter:

 

“I cannot respond to specifics in the case as the suit is still being litigated,” he said. “The proper place to try this case is in a court of law, not in the media. We’re confident that the process will reach an appropriate conclusion once all the facts are known. The allegations in this case are just that; they haven’t been determined to be fact.”

 

The raid

On Aug. 10 of last year, Ali was doing marijuana-related work in Detroit. He had no idea that police had acquired a warrant two days earlier to search his home for marijuana.

 

According to an affidavit filed by police seeking the warrant, Ali’s landlord at the time, Mark William Davis, contacted the Kalamazoo Township Police Department on Aug. 7 after he saw marijuana plants growing in the home.

 

The affidavit says Davis had come to speak with Ali about being late on his rent.

Davis told police that he received no answer after he knocked on the front door, so he looked in the front bedroom window and saw five marijuana plants growing under a lamp, the affidavit says.

 

Upon entering the residence, he also found one marijuana plant in the bathroom and “unknown amounts of plants” in a rear bedroom, the affidavit says.

 

Davis also told police that he saw a piece of paper affixed to the wall in the front bedroom that had Ali’s name on it as well as a “validation date” of June 2009, the affidavit says. “It is unknown if this paper was a copy of medical marijuana card,” the affidavit says. Ali received his patient and caregiver identification cards in early July 2009 and he said he took them with him on his trip.

 

Prior to entering Ali’s home, police contacted the Michigan Department of Community Health to confirm whether Ali was a medical marijuana patient or caregiver, according to the affidavit.

 

But after contacting the MDCH — the state agency charged with processing patient and caregiver applications and providing regulatory oversight of the law — police were told that the department could not confirm or deny whether Ali was a registered patient and user, the affidavit says.

 

0236218_4.jpgJill McLane Baker/Gazette

The reason? Police didn’t have Ali’s patient and caregiver identification card numbers, the only information that the MDCH will allow to be used to make, or deny confirmation.

Home addresses, names or other personal information about a suspect are not enough. Adding to headaches for law enforcement, calls to the MDCH seeking confirmation can only be made between 8 a.m. and 5 p.m., Monday through Friday, meaning that if law enforcement wants confirmation outside of that time frame, they have to assume that there is wrongdoing, law enforcement officials said.

 

According to Section 6(h)3 of the medical marijuana law: “The department (MDCH) shall verify to law enforcement personnel whether a registry identification card is valid, without disclosing more information than is reasonably necessary to verify the authenticity of the registry identification card.”

 

“We have everyone’s information, but if there is not a card number, then it makes it difficult,” said James McCurtis, spokesman for the MDCH. “They have to have the registration ID number for us to determine if they (a patient or caregiver) is legitimate. If they don’t have the number, then there’s nothing we can do for them. That’s the way the law is.”

 

McCurtis’ advice for a registered user or caregiver unlucky enough not to be home when police raid their home? Get an attorney.

 

“They are still protected,” he said. “The only advice I can give is contact an attorney. It can be a headache, but you can fight it.”

 

McCurtis said that it’s up to law enforcement to understand the protections in the law afforded to registered patients and caregivers.

 

“Now it’s no longer the time when they could just raid a home and take a person’s marijuana,” he said. “The law calls for law enforcement to make adjustments.”

 

But without the ability to make those confirmations, the frustrations mount for police.

“If someone tells us that there is cultivation going on there’s no way determine if it’s allowed under the law or if it’s illegal manufacturing and trafficking,” Bourgeois said.

 

“Then it becomes a safety concern to people and officers. People involved in the illegal manufacture of marijuana are routinely armed. It’s (marijuana) serious and we can’t turn a blind eye to it.

 

“I think this points up the difficulty when laws come into force on a referendum or a ballot issue. The law was written in a very vague way that causes great confusion.”

Daniel Grow, a St. Joseph attorney who is representing Ali in his civil suit, said police need to do more.

 

“They have to wait to see to rule out that it (marijuana) is for medical purposes. They should at least try to find the person,” said Grow, who also represents Joseph Casias, a Battle Creek man who garnered nationwide attention after the Wal-Mart store where he was working fired him last year after he tested positive for marijuana. Casias, 30, was treating an inoperable brain tumor legally with medical marijuana.

 

“We don’t do summary executions on the street, so why should we do summary seizures of people’s medicine?” Grow asked.

 

“Now it seems like it’s seize now and ask questions later. We sense some frustration from law enforcement that they have one hand tied behind their back. But when voters approved this law, they wanted to slow down the war on drugs.”

 

Grow said he tells medical marijuana patients and caregivers to tread carefully when it comes to being open about their marijuana, even though the state has a law that protects them.

 

“Think that it’s illegal, because it almost is,” he said. “The police had notice that these plants were for medical purposes. Historically, a raid like this was justifiable. It (marijuana) was illegal everywhere. That’s not the case anymore.”

 

Back in business

On Sept. 17, 2009, Ali and John Targowski, a Kalamazoo criminal defense attorney who was representing him at the time, met with, Georgeann Ergang, a detective with the Kalamazoo Township Police Department and another SWET officer, according to the complaint. During the meeting, Ali requested that his plants be returned. The request was denied.

 

About a week later, Ergang contacted Targowski and told him that no charges would be filed against Ali, according to the complaint.

 

Law enforcement officials said that Ali’s plants were not returned because once in possession of them, they must follow federal guidelines regarding marijuana, meaning that they can’t return seized property that is illegal.

 

Targowski, who has handled many medical marijuana cases and has spoken at several conferences to lend his expertise on the state’s medical marijuana law, took serious issue with that practice.

 

“State officials operating under state law can’t hide behind federal law to refuse a person what’s rightfully theirs,” he said. “They can’t have their cake and eat it, too. People are still a little skeptical that police might treat them as a criminal, not a patient.”

 

Targowski said that if the raid on Ali’s house had been performed by federal law enforcement officials, nothing likely could be done.

 

Despite the setback, Ali is back in business in a new place — he was evicted from the home he rented last year.

 

Immediately after stepping through the front door of his current home on Kalamazoo’s west side on a recent afternoon, one can smell marijuana.

 

Ali walks upstairs to his “grow” room, located in a bedroom. Before entering, he washes his hands and sprays Lysol on the soles of his shoes to kill any bacteria or viruses that might infect the plants.

 

Then he unlocks the bedroom door and heads inside, where seven plants sit under a large grow light, some more mature than others. The plants sway in the breeze made by a small fan oscillating in the corner, which cools them.

 

Ali is currently providing medical marijuana to five registered patients, he said, some of whom suffer from multiple sclerosis and Hepatitis C. He is also a registered user, using medical marijuana to treat chronic back pain he continues to experience after an injury in 2003.

 

“This is an industry that will grow,” Ali said, “and I want to grow with it.”

 

Still, he’s scared, declining to have his face photographed for this article not just because he fears criminal elements possibly breaking into his home, but also further involvement from police.

 

“I’ve already had one run-in with the police and it didn’t go very well. I don’t want to have another,” he said. “I’m an advocate, working with patients all across the state. This issue is happening all over. Maybe the police will stop doing this. Maybe they’ll stop taking people’s medicine.”

[Kevin]

I'm happy to hear that someone has the money to stand up to our oppressors.

[Homes Labs]

nice read