Circuit Court LC No. 15-000166-FH
Before: Ronayne Krause, P.J., and K. F. Kelly and Gadola, JJ.
case involving the Michigan Medical Marihuana 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) of the MMMA. The prosecution appeals that
ruling as of right. We affirm.
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.
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."
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.
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."
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."
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.
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.
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,  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
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.
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 ...