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People v. Manuel

Court of Appeals of Michigan

April 18, 2017

ISKANDAR MANUEL, Defendant-Appellee.

         Ingham Circuit Court LC No. 15-000166-FH

          Before: Ronayne Krause, P.J., and K. F. Kelly and Gadola, JJ.

          Gadola, J.

         In this case involving the Michigan Medical Marihuana[1] Act (MMMA), MCL 333.26421 et seq., defendant was charged with delivering or manufacturing 20 or more, but less than 200 marijuana plants, MCL 333.7401(2)(d)(ii); possessing marijuana with intent to deliver, MCL 333.7401(2)(d)(iii); maintaining a drug house, MCL 333.7405(1)(d) and MCL 333.7406; and possessing a firearm during the commission of a felony (felony-firearm), MCL 750.227b. The trial court dismissed the charges after ruling that defendant was entitled to immunity under MCL 333.26424 (§ 4)[2] of the MMMA. The prosecution appeals that ruling as of right. We affirm.


         On May 14, 2014, Michigan State Police Detective Sergeant Charles Rozum executed a search warrant at defendant's home. Defendant was registered as a primary caregiver under the MMMA and had five associated qualifying patients. On the day of the search, Rozum arrived at defendant's home at 7:15 p.m. and encountered defendant and another man, Michael Lauria, in the driveway close to the garage, which was attached to defendant's home. Rozum testified that he recovered 12 marijuana plants sitting on a freezer in the open garage. Defendant explained that Lauria had just delivered "12 clones" for which defendant paid $120. According to defendant, at the precise moment he "want[ed] to go to the basement, the police raid[ed] [the] house." Rozum testified that "[t]here wasn't a grow operation in the garage, " but there was a grow operation in defendant's basement.

         Rozum explained that the grow operation in defendant's basement was located behind a locked door, but there was a key on a keyring with several other keys already inserted into the locking mechanism, which allowed him to access the room. Defendant testified that the keyring held his house and car keys. Rozum testified that he found two unlocked padlocks, and defendant explained that he secured the door with the two padlocks "[j]ust to make sure nobody can go inside[.]" Rozum said that inside the grow room he encountered another locked door that also had a key in its lock. Defendant testified that the padlocks were not in place and the keys were in the door locks because he was planning to put the plants he purchased from Lauria into the grow room. Defendant testified that prior to Lauria's arrival he was "in the basement preparing 12 pot[s]" so he could transfer the plants. Rozum stated that he found 59 marijuana plants inside the grow room and also found "tins containing suspected marijuana buds."

         Defendant moved to dismiss the charges under § 4. At an evidentiary hearing on the motion, Rozum testified that he weighed the suspected marijuana using a digital scale at his office after the search. Rozum noted that he did not include the packaging when he weighed the suspected marijuana, but did use something to contain the material on the scale. He agreed that he zeroed off the scale before weighing the suspected marijuana. Rozum testified that the tins held 1, 195 grams of what was later determined to be marijuana. The marijuana was then delivered to the Michigan State Police Crime Laboratory in Lansing, Michigan.

         Sandra Jean Schafer, a forensic scientist with the Michigan State Police Crime Laboratory, weighed the marijuana without any packaging on July 2, 2014. She reported that it weighed 1, 068 grams, a difference of 127 grams. She testified that the crime laboratory scales were "calibrated on a monthly basis" and she specifically checked the calibration before using the scale in this instance. Schafer said the marijuana she weighed "was not compressed. It was not moldy. It was not wet, and it was not charred." She described it as being "consistently dry."

         Michigan State Police Detective Sergeant Charles Barker testified that he did not know whether the scales at the office were calibrated on a routine basis. "In general, " he asserted, "most of the weights that are taken at the office are greater than that that is found by the lab." Barker attributed most of these differences to weighing an item in its packaging at the office, but without packaging at the crime laboratory. However, Barker characterized a 127-gram difference as "way excessive."

         Frank Telewski, a professor of plant biology at Michigan State University, testified that the difference of 127 grams was a "rather large discrepancy." Telewski opined that the discrepancy was not likely the result of inaccuracies in the scales, but rather could be easily explained by a loss of moisture. Telewski explained, "[T]he material on the earlier date weighed more because it had a higher moisture content than the material that was subsequently weighed several weeks later." Telewski admitted that he did not examine the scales that were used, but noted that he had no reason to question the accuracy of the scales.

         Rozum described the marijuana he encountered in the tins on the day of the search as "[d]ried marijuana." Explaining how he knew it was not moist, he stated, "When you touch the marijuana your hands didn't get wet, there was no moisture content. When you felt it[, ] it felt stiff, rough, dry." He explained that the marijuana was "crunchy" and testified that, based on his training and 10 years of experience as a narcotics officer, he believed the marijuana was ready to be used. Rozum said that if wet marijuana is stored in a container, "it will mold. If it's dry, it won't mold." Rozum testified that he was unable to say "if [the marijuana] was [dried] a hundred percent or anything less than that, but . . . none of the buds molded in our property room . . . which led me to believe it was dry." Rozum agreed that the marijuana was stored in a paper bag in the property room.

         Telewski testified that plant material can "take anywhere from a few days to 14 days" to dry. He explained that one could "look at the outside of a marijuana bud, it could look like it's dry, but . . . you may not have removed the moisture from inside of it and . . . it may not be dry." Telewski opined that "[w]eighing the plant material is the best way to determine how well it's dried." Telewski said that when he viewed the marijuana on December 22, 2015, it "appeared to be in a dried state[.]" He agreed, however, that he did not perform any scientific tests to determine the moisture content of the marijuana. Telewski weighed the marijuana on December 22, 2015, and it weighed 2 pounds 9.25 ounces, [3] but he explained that he did not remove the marijuana from the plastic bag it was stored in and did not calibrate the scale immediately before taking the weight.

         Defendant testified that he began drying the marijuana "two or three days" before the police executed the search warrant, and planned to keep the marijuana drying in the tins "[a]bout six, seven days more." Defendant further explained that he did not put all of the marijuana in the tins on the same day or at the same time.

         The prosecution conceded at the hearing that defendant possessed a valid registry identification card at all times relevant to the charged offenses. After taking testimony, the court concluded that defendant complied with the volume limitations of § 4. It found that defendant possessed only 71 marijuana plants and that the marijuana he had in the tins was unusable because it was in "various stages of drying." The court found that defendant stored the marijuana in an enclosed, locked facility because "he simply had [his] keys in the room for a very short time anticipating the delivery . . . ." Finally, the trial court found that defendant was engaged in the medical use of marijuana, despite the prosecution's ...

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