Coa: Too Many Pot Plants

[AlternativeSolutionsPlus]

The Michigan Court of Appeals (COA) today sent back a case to the lower court that had allowed a purported medical marijuana caregiver to suppress evidence from his pole barn with nearly 150 pot plants.

 

The prosecutor in the case appealed the trial court's order that granted Joshua Adam SPENCER's motion to suppress evidence from the search of his pole barn. The prosecutor had charged Spencer with one count of delivery or manufacturing of between 5 and 45 kilograms of marijuana, beyond the amount allowed under the Michigan Medical Marihuana Act (MMMA).

 

Michigan State Police Officer Kipling BELCHER testified in the trial court hearing that he and Leelanau County Sherriff's Detective Greg HORNKOHL visited Spencer's residence on Sept. 30, 2010, to investigate an anonymous tip that Spencer was growing a quantity of marijuana beyond what's permitted by the MMMA.

 

As Belcher and Hornkohl approached a pole barn on the property, Belcher noticed a strong odor of marijuana emanating from the door. Spencer, coming out of the pole barn, claimed he was growing 45 marijuana plants in his pole barn as a "registered caregiver" under the MMMA.

 

Belcher stated he was able to verify that if Spencer were in compliance with the MMMA, he would be permitted to grow 84 plants, according to his certification paperwork.

 

Belcher asked for consent to search the pole barn, and Spencer said he could deny it it. Belcher said he would seek a search warrant and leave an officer on the scene to prevent destruction of evidence.

 

According to Belcher, at that point, Spencer became obstinate. Belcher admitted he elevated his tone and briefly used physical force to restrain Spencer in order to prevent him from destroying any potential evidence.

 

Belcher claimed that Spencer later apologized and admitted he was fleeing into the pole barn because he knew he was growing more plants than allowed, and he was attempting to destroy them before the police could recover them. According to Belcher, the defendant then agreed to fully cooperate and verbally consented to allow Belcher and Hornkohl to have complete access to the pole barn. Belcher testified that he counted 143 marijuana plants in different rooms and in various stages of growth.

 

When the case went to court, Spencer filed a motion to suppress all evidence obtained from the search on the ground that the officers engaged in an unreasonable search in violation of the Fourth Amendment.

 

He essentially argued the officers' conduct went beyond what was constitutionally permissible in a "knock and talk" search and trespassed onto his private property. The police and prosecutor said the search was constitutionally permissible because defendant's consent to search was knowingly and voluntarily made.

 

The trial court ruled that the officers lacked probable cause for a search of the pole barn, saying merely smelling marijuana from outside the pole barn offered no proof of criminal activity. The trial court also ruled the police were unreasonably trespassing on Spencer's land when they went to the pole barn.

 

The prosecutor appealed the trial court ruling to the Court of Appeals, arguing the search of Spencer's premises did not violate his Fourth Amendment rights because the conduct of the police in approaching and knocking on the pole barn door was not a "search" that implicated constitutional protections.

 

The Court of Appeals agreed with the prosecutor and reversed and remanded the case.

 

The Court of Appeals panel included Judges Joel HOEKSTRA, David SAWYER and Henry William SAAD.

 

The case is People of the State of Michigan v Joshua Adam Spencer, Court of Appeals case No. 304422.

[Estimated Prophet]

Reversed and remanded means that it will go to trial again?

[LansingAreaCaregiver]

Wow. Sucks to be this guy, but he broke the very first rule. Never EVER consent to a search of any kind. No matter how legal you are or how bad the cops rough you up, threaten you, etc... It will NEVER help you and can only hurt you. He probably would have come out on top had he stuck to his guns and made the police go get a warrant. Once you wave those rights, you're screwed.

 

No need to argue or fight about it with the officers. Simply calmly, firmly and loudly repeat the following phrase (preferably while recording the video and audio on your grow facility's cameras) " do not consent to any searches." It is the only chance you have.

[Honeyoil]

So now 18-0?

[+Annnie]

It would seem to me that the circuit judges who are making these correct decisions would be getting upset and offended by the Coa decisions. Is there a way we can work that?

[+washtenaut]

...hmmm Sawyer and Saad...sound familiar ??

 

Anyone remember this ruling?

 

-------------------------------------------

Charges Reinstated After Court Finds Marijuana Enclosure Lacking

 

 

Posted by washtenaut on 04 February 2011 - 07:24 PM in The War on Drugs:

 

Does anyone have email addresses for these two judges that voted against Mr King? Maybe we could send our opinions of their opinions to them to read. Henry Saad and David Sawyer ??

 

I just read in his bio that Judge Saad taught Professional Responsibility at Wayne State. Wow, please review those old notes your honor!

 

I just know what I read but this sounds like a case study in irresponsible judicial rulings.....one of those how could it happen studies. How were these men so blinded as to make this decision.

 

The spirit of the law is clearly to let patients and caregivers grow medicine. If these patients or caregivers are not selling marijuana to nonpatients under cover of the MMJ card, please focus your prosecutorial efforts elsewhere!

[pic book]

Wow. Sucks to be this guy, but he broke the very first rule. Never EVER consent to a search of any kind. No matter how legal you are or how bad the cops rough you up, threaten you, etc... It will NEVER help you and can only hurt you. He probably would have come out on top had he stuck to his guns and made the police go get a warrant. Once you wave those rights, you're screwed.

 

No need to argue or fight about it with the officers. Simply calmly, firmly and loudly repeat the following phrase (preferably while recording the video and audio on your grow facility's cameras) " do not consent to any searches." It is the only chance you have.

So easy to read--so hard to do when they're in your face unless you roleplayed it--beforehand. Compassion clubs could serve as a stage.

[+Annnie]

I have been working on a "What to do in the event of a police interaction" presentation for the folks.. Specifically.. as soon as i asked for a lawyer they were done brother.. and even in the part where they talk about what we said that night.. they included nothing i said.. and just said i asked for a lawyer.. Hubby on the other hand.. He could have benefitted from a training..

 

 

And i want to give a big shout out to Mr Matt Abel who in the past had told me.. "Dont talk about your buisness with the police if they happen to come by" Thanks buddy!!